UNIVERSITY  OF  CALIFORNIA. 


rlKT  OK 


Received 
Accession  No. 


•    Cla*s 


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RITES  HELD  FOR 
D.L 


Services  Take  Place  at  Santa 
Monica  for  Noted  Cali 
fornia  Lawyer. 


SANTA  MONICA,  Aug.  2.— OP)— 
Funeral  services  for  Delphin  M. 
Delmas,  nationally  known  attor 
ney,  who  died  here  yesterday,  were 
held  today  from  the  family  resi 
dence  here.  No  announcement  pre 
ceded  the  service  and  only  relatives 
and  a  few  intimate  friends  were 
present. 

Rev.  Wallace  N.  Pierson,  an  in 
timate  friend  of  the  famous  bar 
rister,  read  the  Episcopal  service. 
The  body  was  removed  to  Los  An 
geles  for  cremation. 

One  special  request  was  made  by 
Delmas  before  his  death,  which 
followed  a  brief  illness  after  law 
practice  activity  that  extended  up 
to  a  few  weegs  ago.  That  request, 
which  will  be  carried  out,  was 
that  his  ashes  be  intermingled  with 
those  of  his  wife,  who  died  ten 
years  ago,  and  strewn  over  Topanga 
Canyon,  a  mountain  gateway  from 
the  seashore  to  the  valley. 

Delmas  was  born  in  France  in 
1844  and  came  to  California  with 
his  parents  when  10  years  old.  He 
was  educated  in  Santa  Clara  county, 
being  graduated  from  Santa  Clara 
college  with  the  highest  honors. 
He  studied  law  at  Yale,  was  admit 
ted  to  practice  in  Connecticut  on 
graduation,  and  later  became  a 
member  of  the  California  bar.  He 
practiced  law  16  years  in  San  Jose. 
In  1867  he  was  elected  district  at 
torney,  the  only  public  office  he 


MARRIED    IN    1869. 

Delroas  and  Miss  Pauline  Hoge, 
daughter  of  Colonel*  Joseph  Hoge 
of  San  Francisco,  were  married  in 
1869.  Of  the  four  children,  Mrs. 
Elsie  D.  Barnes  and  Miss  Antoin 
ette  Delmas,  both  of  Santa  Monica, 
are  still  alive.  The  mother  died 
some  time  ago.  Delmas  was  made 
regent  of  the  University  of  Cali 
fornia  by  Governor  Stoneman  in 
1884,  and  he  won  distinction  as  a 
Charter  day  orator. 

Delmas  established  himself  in 
San  Francisco  about  this  time  and 
won  distinction  in  important  civil 
and  criminal  cases.  Among  them 
was  the  suit  of  Mrs.  Ellen  M,  Col- 
ton  against  Leland  Stanford,  Chas. 
Crocker  and  Collis  P.  Huntington, 
with  the  Southern  Pacific  railroad, 
then  worth  $100,000,000,  as  the 
stake.  Delmas,  as  attorney  for 
Mrs.  Colton  kept  the  litigation  alive 
for  more  than  two  years.  He  was 
opposed  by  Hall  McAllister,  an 
equally  famous  attorney. 
FAMOUS  CASES. 

In  the  famous  James  G.  Fair  will 
case,  Delmas  represented  Mrs. 
Nettie  Craven.  He  defended  John 
D.  Spreckels  in  a  suit  brought  by 
Baron  von  Schroeder  and  cut  the 
baron's  damages  down,  to  $1.  Del 
mas  obtained  an  acquittal  of •  Trux- 
ton  Beale  when  he  shot  Frederick 
Marriott  for  publishing  statements 
about  Miss  Marie  Oge,  Beale's 
fiancee,  using  the  "unwritten  law" 
defense. 

Delmas'  most  famous  case  was 
the  defense  of  Harry  Thaw, 
charged  with  the  murder  of  Stan 
ford  White  in  New  York.  Delmas 
brought  forward  his  famous  "de 
mentia  Americana"  and  proved  a 
thorn  in  the  flesh  of  District  At 
torney  Jerome,  considered  the 
ablest  prosecutor  in  the  country, 
until  he  obtained  a  jury  disagree 
ment.  The  disagreement,  in  the 
public  mind,  was  considered  tanta 
mount  to  an  acquittal. 

Delmas,  by  his  personal  resem 
blance  to  Napoleon,  was  often  re 
ferred  to  as  "The  Napoleon  of  the 
Bar"  and  took  the  title  to  his  death. 
Henry  C.  McPike,  a  former  law 
partner,  who  established  an  office 
with  Delmas  in  New  York,  is  a  resi 
dent  of  Oakland* 


[Lyi+>v\ 


This  edition  is  limited  to 
35   copies   of  which    this   is 


SPEECHES    AND    ADDRESSES 


Speeches  and  Addresses 


By 

D.  M,  Delmas 


San  Francisco 

A.   M.   Robertson 

1901 


COPYRIGHT,    IQOI,   BY 
A.    M.    ROBERTSON 


THE    MURDOCH    PRESS 


FREQUENT  demands  have  led  to  the  belief  that 
a  collection  of  the  speeches  of  Mr.  Delmas  which 
have  already  separately  appeared  in  print,  sufficient 
in  scope  to  contain  some  examples  of  his  addresses 
to  juries,  courts,  and  public  assemblies,  would  be 
received  with  favor  by  the  public.  In  this  belief, 
and  with  the  sanction  of  Mr.  Delmas,  this  volume 
is  published. 


83693 


CONTENTS 

Page 

ARGUMENT  IN  VON  SCHROEDER  vs.    SPRECKELS  ....  9 

ARGUMENT  IN   CONTEST  OF  PARKER'S  WILL        ....  57 

ARGUMENT  IN  RE  SHORTRIDGE 115 

ARGUMENT  IN  THE  RAILROAD  TAX  CASES 161 

SPEECH  AT  SANTA  CRUZ 215 

ADDRESS  ON  EDUCATION 257 

EULOGY  OF  STEPHEN  M.  WHITE .      .      .  289 

ADDRESS  AT  ELKS'  MEMORIAL  SERVICE     .      .      .    ';.     .      .  298 

ADDRESS  BEFORE  THE  SONS  OF  THE  REVOLUTION       .      .      .  306 

ARGUMENT  IN  JARMAN  vs.  REA:  DESCRIPTION  OF  A  POLITICAL 

Boss ...      ...  313 

ADDRESS  BEFORE  THE  CHIT-CHAT  CLUB  .      .  •  .      .      .      .  317 

ADDRESS  ON  INDEPENDENCE  DAY 323 

WALTER    SCOTT:     ADDRESS     BEFORE    THE     ST.    ANDREW'S 

SOCIETY «     v    .     .  329 

ADDRESS  ON  THE  INAUGURATION  OF  THE  HON.  HORACE  DAVIS 

AS  PRESIDENT  OF  THE  UNIVERSITY  OF  CALIFORNIA      .  339 

ARGUMENT  IN  THE  CASE  OF  COLTON  vs.  STANFORD,  ET  ALS.  344 

ADDRESS  BEFORE  THE  LEGISLATURE  OF  CALIFORNIA  .      .      .  353 


TO    A    JURY 


THE  following  argument  was  made  by  Mr.  Delmas,  in  the  Court 
House,  in  San  Rafael,  on  the  2 zd  of  December,  1900.  The  nature 
of  the  controversy  which  called  it  forth  is  correctly  stated  in  an 
editorial  of  the  Argonaut,  published  at  the  close  of  the  trial: — 

"The  case  was,  in  many  respects,  a  peculiar  one.  Baron  von 
Schroeder,  the  plaintiff,  is  a  German  subject,  an  officer  in  the 
German  army  reserve,  and  for  many  years  the  husband  of  a  Cali 
fornia  millionaire's  daughter.  He  has  been  domiciled  in  California 
for  some  twenty  years.  Among  the  other  property  belonging  to 
his  wife  is  the  Hotel  Rafael,  in  Marin  County,  a  popular  summer 
resort.  The  defendant  was  John  D.  Spreckels,  son  of  Claus 
Spreckels,  the  multi-millionaire,  and  himself  a  millionaire.  In  addi 
tion  to  his  many  other  properties,  John  D.  Spreckels  owns  the  Call 
newspaper.  In  October,  1898,  the  Call  printed  an  account  of 
certain  alleged  doings  at  the  Hotel  Rafael,  making  accusations  con 
cerning  Baron  von  Schroeder' s  conduct  toward  the  ladies  there, 
both  married  and  single,  winding  up  with  the  statement  that  the 
lessee  of  the  hotel  was  forced  to  throw  up  his  lease  by  reason  of 
the  scandalous  conduct  of  the  lessor,  Baron  von  Schroeder.  As  a 
result  of  this  article,  Von  Schroeder  brought  suit  against  John  D. 
Spreckels  for  two  hundred  and  fifty  thousand  dollars  damages  for 
libel.  The  suit  has  just  ended  with  a  verdict  in  favor  of  Spreckels 
and  against  Von  Schroeder. 

"The  suit  was  remarkable  in  many  respects.  The  prominence 
of  the  two  parties,  their  wealth,  and  the  fact  that  the  testimony  in 
the  case  would  involve  the  names  of  some  of  the  lady  guests, 
attracted  wide  attention." 


VON    SCHROEDER   vs.    SPRECKELS 

IF  IT  PLEASE  YOUR  HONOR,  AND  YOU,  GENTLEMEN 

OF  THE  JURY  :  In  his  opening  the  learned  counsel 
has  dwelt  upon  the  importance  of  this  case  to  his 
client.  He  has  told  you  of  its  momentous  conse 
quences  to  him.  All  this  is  beyond  question  true. 
But  there  is  also  another  consideration  which  ren 
ders  your  verdict  one  of  paramount  importance. 
By  that  verdict  you  will  define  the  proper  limits  of 
the  rights  and  duties  of  the  press  in  this  State. 
You  will  authoritatively  answer  what  I  asked  you 
when  examining  you  as  to  your  competency  as 
jurors.  You  will  decide  the  question  whether, 
whenever  it  acquires  knowledge  of  individual  con 
duct  of  such  an  open  and  flagrant  character  as  to 
become  a  menace  to  morals,  it  is  the  right  and  duty 
of  a  newspaper  to  protect  the  homes  of  the  com 
munity  by  holding  up  that  conduct  to  public  cen 
sure.  This  consideration  it  is,  gentlemen,  which 
will  give  port  and  stature  to  your  deliberations,  and 
impart  its  true  dignity  to  your  verdict.  Whilst, 
therefore,  I  do  not  doubt  the  great  interest  which 
the  plaintiff  has  in  your  judgment,  I  feel  confident 


ARGUMENT 

that  you  will  not  fail  to  appreciate  the  fact  that 
the  public  have  in  the  outcome  an  equally  deep 
concern. 

The  rights  and  duties  of  the  press  are,  at  times, 
much  misunderstood.  No  one  contends,  of  course, 
that  it  has  a  right  to  invade  homes  for  the  purpose 
of  prying  into  strictly  private  conduct,  however  de 
praved.  But  whenever  that  conduct  takes  place 
under  such  circumstances  that  the  public  must,  of 
necessity,  be  affected  by  it,  then  a  public  journal 
has  not  only  the  right,  but  is  charged  with  the 
duty  of  exposing  it.  If,  therefore,  the  character 
of  the  life  led  by  the  plaintiff  has  been  not  only  in 
itself  immoral,  but  has  been  displayed  in  such  a  man 
ner  that  the  public  could  not  but  be  scandalized  by 
it,  I  shall  appeal  to  you  to  establish  by  your  verdict 
that  the  newspaper  which  has  held  him  up  in  his 
true  light  is  not  only  not  open  to  the  charge  of 
overstepping  the  bounds  of  its  legitimate  province, 
but,  on  the  contrary,  deserves  commendation  for 
what  it  has  done. 

It  remains  for  you,  therefore,  in  the  discharge  not 
only  of  the  duty  which  you  owe  to  the  plaintiff,  but 
of  that  which  you  owe  to  the  community,  carefully 
to  determine  the  facts  of  this  case,  and  then  to  decide 
whether  those  facts  legally  afford  to  the  defendant  as 
the  owner  of  this  paper  immunity  for  this  publica 
tion. 

The  proper  attitude  of  the  press  with  reference 
to  matters  of  this  kind  is  outlined  in  the  editorial 

10 


VON    SCHROEDER   vs.    SPRECKELS 

published  the  day  after  the  appearance  of  the  article 
in  question.  That  editorial,  put  in  evidence  by  the 
plaintiff  himself,  has  been  read  to  you.  It  presents, 
couched  in  very  clear  language,  the  canons  of  ethics 
universally  adopted  for  the  guidance  of  the  press  in 
the  United  States.* 

*  The  editorial  is  in  these  words: — 

"  THE    EXPOSURE    OF    SCANDALS. 

"A  journal  devoted  to  the  welfare  of  society  as  well  as  to  the 
dissemination  of  news  carefully  abstains  from  the  publication  of 
scandals  in  the  lives  of  private  individuals  as  long  as  it  is  possible  to 
do  so  without  wrong  to  the  community.  When,  however,  the 
scandals  become  notorious,  and  are  committed  by  persons  who  by 
reason  of  their  wealth  and  the  influence  of  their  families  have  admis 
sion  to  the  homes  of  the  city,  it  then  becomes  necessary  for  the  pro 
tection  of  womanhood  to  expose  the  evil,  in  order  that  the  offender 
may  be  known  and  society  put  on  guard  against  him. 

**  The  contaminating  effect  of  notorious  wrong-doers  who  rely  on 
wealth  and  social  position  to  enable  them  to  practice  a  vicious  course 
with  impunity  is  far-reaching.  Persons  thoroughly  innocent  of 
wrong  intent  are  not  infrequently  made  the  objects  of  unjust  suspicion 
simply  because  in  their  ignorance  they  associate  with  some  unexposed 
rascal  in  society.  When  to  save  innocent  persons  from  that  danger 
it  becomes  necessary  to  make  public  the  scandalous  life  of  the  offender, 
then  the  exposure  becomes  a  duty  which  the  press  owes  to  the 
public. 

"  There  are  many  persons  of  depraved  tastes  and  appetites  with  a 
fondness  for  violating  the  established  code  of  social  ethics  who  can 
be  restrained  only  by  the  fear  that  if  they  persist  in  evil  courses  they 
will  be  exposed  and  held  up  to  the  public  scorn.  The  existence  of 
an  independent  press,  ready  to  make  the  exposure  without  fear  or 
favor,  acts  therefore  as  a  safeguard  to  the  community.  Even  where 
it  does  not  deter  some  bolder  profligate  from  pursuing  a  career  ot 
notorious  scandal,  it  at  least  gives  notice  of  his  character  and  puts 

ii 


ARGUMENT 

Was  the  article  in  question  published  in  further 
ance  of  the  lofty  and  praiseworthy  purposes  so  well 
expressed  in  that  editorial?  Or,  contrariwise,  was  it, 
as  claimed  by  the  learned  counsel,  conceived  in  pre 
judice  and  born  in  malice?  If  the  former,  then,  I 
repeat  it,  the  article  is  not  only  blameless  in  law,  but 
is  in  fact  commendable.  If  the  latter,  it  is  beyond 
question  deserving  of  the  severest  censure. 

Here,  then,  we  are  confronted  with  the  first  great 
question  in  this  case :  What  were  the  motives  which 
prompted  the  publication  of  this  article  ?  The  learned 
counsel  has  been  pleased  to  describe  them  in  the 
following  words: — 

"  We  say  the  article  was  wanton,  willful,  malicious, 
false,  and  for  the  purpose,  and  the  sole  purpose,  of 
using  a  powerful  metropolitan  paper  owned  by  an 
unscrupulous  millionaire  to  blast  the  reputation  and 
fame  of  a  man  against  whom  he  entertained  some 
feeling  of  personal  enmity  or  hatred." 

Is  this  true?  If  it  is, — if  this  publication  origi 
nated  in  a  malicious  purpose  wantonly  to  injure  the 
plaintiff,  to  destroy  his  character  and  to  ruin  his 
happiness, — then  the  defendant  has  indeed  placed 
himself  beyond  the  pale  of  the  law.  Under  such 

the  homes  of  the  city  on  guard  against  him.  The  publication  of 
private  offenses  is  therefore  one  of  the  disagreeable  acts  which  must 
at  times  be  performed  by  even  the  most  careful  journal  that  has  any 
respect  for  virtue  and  any  true  comprehension  of  its  duty  to  the 
public. '  * 

12 


VON    SCHROEDER   vs.    SPRECKELS 

circumstances  justice  would  not  only  permit  but 
would  demand  that  the  jury  visit  with  condign  pun 
ishment  the  publisher  who  could  pervert  to  such 
base  uses  the  vast  powers  confided  to  his  hands;  and 
you,  gentlemen,  would  have  the  full  warrant  of  the 
law  to  express  by  your  verdict  the  abhorrence 
with  which  such  a  character  should  be  looked  upon 
—  a  character,  as  well  stated  by  the  learned  counsel, 
with  which  the  cutpurse,  the  burglar,  or  even  the 
shedder  of  human  blood,  is,  in  point  of  depravity, 
not  to  be  compared.  I  ask  you,  then,  had  the 
learned  counsel  any  ground  for  this  denunciation  of 
my  client?  Do  his  words  find  justification  in  the 
evidence? 

The  evidence  shows  on  the  contrary,  that  the 
defendant  never  entertained  the  slightest  animosity 
against  the  plaintiff.  It  shows  that  the  article  did 
not  originate  in  a  desire  to  gratify  a  personal  grudge. 
It  shows  that  the  publication  was  not  made  with  a 
view  to  inflict  injury.  This  is  established  by  con 
siderations  to  which  I  shall  presently  invite  your 
attention. 

Before  entering  at  large  upon  this  field  of  discus 
sion,  however,  let  me  dismiss  with  a  smile  the 
suggestion,  but  half-voiced  by  the  learned  counsel, 
as  if  his  own  good  sense  instinctively  shrank  from 
giving  utterance  to  such  a  proposition,  that  Mr. 
Spreckels  sought  to  destroy  the  reputation  of  the 
resort  owned  here  in  San  Rafael  by  the  plaintiff, 
because,  forsooth,  he  himself  has  some  interest  in  a 

13 


ARGUMENT 

similar  establishment  in  the  southern  part  of  the 
State — some  six  hundred  and  twenty  miles  away! 

And  now  as  to  the  question  of  malice.  In  deal 
ing  with  this  branch  of  the  case,  gentlemen,  I  might 
well  rely  upon  the  name  which  the  defendant  bears 
as  affording  in  itself  a  sufficient  refutation  of  such  a 
charge.  That  name  has  been  for  nearly  half  a 
century  inseparably  associated  with  the  growth  and 
development  of  the  resources  of  California.  It  is 
indissolubly  linked  with  our  most  important  manu 
facturing,  commercial,  and  industrial  enterprises.  Its 
very  utterance  at  once  suggests  to  the  mind  of  every 
man  who  hears  it  honorable  dealing  and  enlightened 
generosity.  Prosperity  has  rewarded  the  labors  of 
the  family  of  the  Spreckels;  public  benefits  have 
flowed  from  the  vast  scope  of  its  varied  undertak 
ings;  and  public  gratitude  has  attested  its  open- 
handed  munificence.  No  man  —  no  group  of  men 
—  could  have  successfully  conducted  enterprises  so 
protracted,  diversified,  and  extensive,  if  the  guiding- 
star  of  their  course  had  been  personal  spite  or  petty 
malice.  Such  achievements  must  have  for  their 
basis  kindliness  and  good-will  to  all  men. 

The  fair  and  broad-minded  business  methods 
which  have  ever  characterized  Mr.  Spreckels's  under 
takings  did  not  desert  him,  when,  now  some  three 
years  ago,  he  became  the  owner  of  the  Call.  The 
work  was  novel.  His  walks  had  been  in  other 
fields.  Of  the  management  of  a  great  public  jour 
nal  he  had  little  knowledge.  But  his  innate  sense 

14 


VON   SCHROEDER   vs.    SPRECKELS 

of  right  and  justice  afforded — so  far,  at  least,  as 
tone  and  policy  were  concerned — a  sufficient  guide. 
He  promulgated  one  cardinal  rule,  from  which  he 
has  never  permitted  the  paper  to  depart.  He  traced 
a  line  of  conduct,  from  which  he  has  never  allowed 
it  to  swerve.  He  laid  down  one  maxim,  which  he 
has  always  compelled  it  unquestioningly  to  obey. 
From  the  very  start,  his  orders  were  that  nothing 
should  be  published  without  having  first  undergone 
the  most  scrupulous  examination  as  to  accuracy  and 
truth;  and  that  if  in  the  unavoidable  expedition  of 
the  work  some  inaccuracy  should  elude  the  rigorous 
vigilance  imposed,  then,  as  soon  as  the  facts  were 
ascertained,  a  retraction  or  modification  should  at 
once  be  printed,  in  a  place  as  prominent  and  in  type 
as  conspicuous  as  the  original  matter. 

This  was  the  spirit  with  which  Mr.  Spreckels 
entered  upon  his  new  and  important  duties  as  the 
owner  and  editor  of  the  Call.  And  in  this  spirit  he 
has  conducted  it  until  now.  These  facts,  gentlemen, 
are  established  by  uncontradicted  testimony.  Indeed, 
no  one  disputes  them. 

When  he  speaks  of  the  motives  of  Mr.  Spreckels, 
and  affirms  that  he  desired  to  "  gratify  his  unscrupu 
lous  malice  by  the  publication  of  this  article,"  and 
to  "blast  the  reputation  and  fame  of  a  man  against 
whom  he  entertained  some  feeling  of  personal 
enmity/'  does  the  learned  counsel  overlook  the  fact 
that,  from  the  time  this  article  was  first  spoken,  or 
even  thought,  of  until  it  saw  the  light,  Mr.  Spreckels 

15 


ARGUMENT 

was  at  his  sugar  factory  in  Salinas?  Does  he  forget 
that  the  first  intimation  he  had  of  this  article,  or  of 
any  matter  connected  with  it,  was  when,  on  his 
return  home,  he  read  it  in  the  Call?  Is  it  pretended 
that  before  that  time  he  knew  of  the  information  that 
came,  on  the  evening  of  the  24th,  from  San  Rafael? 
No  one  so  pretends.  Is  it  pretended  that  he  knew 
of  the  interview  with  General  Warfield,  which  took 
place  that  evening?  No  one  so  pretends.  Is  it 
pretended  that  he  sanctioned,  or  even  had  any 
intimation  of,  the  publication  until  after  it  was 
made?  No  one  so  pretends.  When  all  these  things 
took  place  he  was  quietly  asleep  one  hundred  and 
twenty  miles  away.  What,  then,  becomes  of  this 
charge  of  malice? 

Independent  of  this,  which  may  be  called  nega 
tive  proof,  the  circumstances  affirmatively  show  not 
only  the  utter  lack  of  malice,  but  even  a  feeling  of 
consideration — of  ill-advised  and  undeserved  con 
sideration,  as  the  event  proved — for  the  plaintiff. 
To  these  circumstances  I  now  invite  your  atten 
tion. 

Fifteen  days  before  the  article  in  question  was 
published,  on  the  night  of  the  loth  of  October, 
1899,  news  reached  the  Call  office  of  a  certain 
episode  that  had  just  taken  place  at  the  Palace 
Hotel  in  which  the  plaintiff  and  his  brother  were 
implicated.  What  the  nature  of  that  episode  was 
may  be  inferred  from  the  fact  that  the  learned  coun 
sel  who  is  here  championing  the  reputation  of  his 

16 


VON   SCHROEDER   vs.    SPRECKELS 

client  durst  not  permit  us,  though  we  had  the  wit 
nesses  at  hand, — one  of  them  actually  on  the  stand, 
—  to  inquire  into  or  prove  it.  Though  the  facts 
were  indisputable,  the  general  manager  would  not 
take  upon  himself  the  responsibility  of  giving  them 
to  the  world.  In  dealing  with  a  matter  which 
affected  the  character  and  social  standing  of  two 
such  prominent  men  he  deemed  it  his  duty  to 
invoke  the  decision  of  his  chief,  the  owner  of  the 
paper.  Accordingly,  though  it  was  then  past  mid 
night,  he  telephoned  to  Mr.  Spreckels,  calling  him 
to  the  editorial  rooms.  Upon  his  arrival,  a  little 
before  one  o'clock,  Mr.  Spreckels  is  made  acquainted 
with  the  condition  of  affairs.  The  article,  then 
already  prepared,  is  shown  him.  He  is  told  that 
the  facts  stated  in  it  are  beyond  question  true.  He 
is  informed  that  the  manager  and  heads  of  depart 
ments  are  unanimous  in  the  opinion  that  the  canons 
of  newspaper  ethics  warrant  the  publication.  What 
does  he  do?  If  he  entertained  feelings  of  enmity 
against  the  plaintiff,  here  was  an  occasion  to  glut  full 
his  hatred.  All  he  needed  to  do  was  to  sanction  the 
publication.  Did  he  do  so?  On  the  contrary,  he 
forbade  it.  Was  that  done  in  malice?  Was  it  done 
to  gratify  revenge?  Was  it,  to  use  the  language  of 
the  learned  counsel,  done  "  for  the  purpose  of  using 
a  powerful  metropolitan  paper  to  blast  the  reputa 
tion  and  fame"  of  an  enemy? 

There    is    another  circumstance    which    may    be 
adduced  in    confirmation    of  the    fairness    of   Mr. 

J7 


ARGUMENT 

Spreckels,  and  the  utter  absence  of  malice  on  his 
part.  As  already  stated,  he  knew  nothing  of  the 
article  until  after  it  was  published.  He  reads  it,  on 
the  afternoon  of  the  25th  of  October,  while  on  his 
way  home  from  Salinas.  He  arrives  in  San  Fran 
cisco  at  about  four  o'clock.  He  employs  the 
remaining  moments  of  daylight  in  dispatching  the 
business  accumulated  in  his  office.  In  the  evening, 
he  sees  for  the  first  time  the  publication  in  the  Bul 
letin  purporting  to  be  a  letter  signed  by  General 
Warfield.  He  is  at  once  struck  with  the  apparent 
contradiction  which  it  gives  to  the  statements  con 
tained  in  the  article.  He  asks  himself:  "  Is  it  pos 
sible  that  during  my  absence  my  instructions  have 
been  disregarded?  Has  my  staff  neglected  the 
observance  of  those  rules  of  circumspection  and 
prudence  which  I  have  from  the  start  inculcated? 
Has  a  mistake  been  made?  Has  a  wrong  been 
done  to  Baron  von  Schroeder?"  He  resolves  to 
obtain  immediate  information  in  answer  to  all  these 
questions.  It  is  then  too  late,  the  night  being 
already  somewhat  spent.  But  the  very  next  morn 
ing  he  sends  for  General  Warfield,  requesting  him 
to  come  to  the  Call  office.  The  General  arrives 
there  shortly  after  midday. 

What  took  place  at  that  interview  you  know.  It 
is  stated  by  Mr.  Spreckels,  whose  evidence  is  in  no 
manner  questioned.  He  testifies  that  he  said,  in 
substance :  "  General,  do  I  understand  that,  by  your 
letter  published  in  the  Bulletin,,  you  intend  to  deny 

18 


VON    SCHROEDER   vs.    SPRECKELS 

the  accuracy  or  truthfulness  of  the  statements  con 
tained  in  the  Call  of  yesterday?"  The  General,  in 
substance, replied:  " No,  Mr. Spreckels;  I  do  not.  I 
have  not  said,  and  do  not  intend  to  say,  that  the  state 
ments  contained  in  the  article  are  not  true.  On  the 
contrary,  I  assert  that  I  firmly  believe  them  to  be 
true.  Note  that  I  do  not  say  in  this  letter  that 
these  statements  are  untrue,  nor  that  I  do  not 
believe  them  to  be  true,  but,  simply,  that  I  have  no 
personal  knowledge  of  the  facts  upon  which  they 
are  based." 

Interpreted  in  the  light  of  what  we  now  know, 
what  was  the  meaning  of  this  statement  of  General 
Warfield?  Simply  this:  "I  personally  did  not  sit 
up  from  evening  until  dawn  to  see  Baron  von 
Schroeder  gambling  with  women  in  the  club-house; 
I  personally  did  not  remain  in  the  wine-room  from 
eight  at  night  until  four  in  the  morning,  with  him 
and  his  male  and  female  companions,  to  see  them 
carousing  and  getting  drunk;  I  personally  did  not 
see  him  leave  the  hotel  on  the  night  when,  with  a 
bridegroom  and  bride  and  another  woman,  he  drove 
to  a  disreputable  resort,  and  there  remained  alone 
with  the  bride  until  three  or  half-past  three  in  the 
morning.  None  of  these  things  did  I  see  with  my 
own  eyes.  But  they  came  to  me  from  sources 
which  I  could  not  question.  I  believed  them  to 
be  true  when  I  stated  them  in  the  interview  with 
the  manager  of  the  Call.  I  believe  them  now.  I 
have  not  denied  and  do  not  intend  to  deny  them." 

19 


ARGUMENT 

The  learned  counsel  has  sought  to  persuade 
you  that  in  the  failure  of  the  Call  to  retract  the 
article  in  question  you  must  find  an  evidence  of 
Mr.  Spreckels's  malice  against  the  plaintiff.  But 
after  this  interview  with  General  Warfield,  what 
retraction  was  possible?  What  could  the  Call  say? 
That  the  information  upon  which  its  article  was 
based  was  incorrect?  But  General  Warfield  had 
just  confirmed  it.  That  the  facts  related  in  the 
article  were  not  true?  But  General  Warfield  had 
just  reaffirmed  them. 

I  can  well  imagine  circumstances  under  which  a 
retraction  would  have  been  proper,  and  a  refusal 
to  make  it  would  have  afforded  evidence  of  malice. 
Suppose  at  the  interview  in  question  General  War- 
field  had  said :  "  Mr.  Spreckels,  the  article  in  the 
Call  is  an  unjust  imputation  against  an  innocent 
man.  The  charges  it  contains  are  not  true.  Dur 
ing  the  many  years  I  have  conducted  the  Hotel 
Rafael  Baron  von  Schroeder's  behavior  has  been 
that  of  a  gentleman.  His  conduct  toward  the 
ladies  of  the  house  has  always  been  characterized  by 
courtesy  and  respect.  I  have  never  heard  of  his 
doing  anything  that  could  offend  modesty  or 
expose  him  to  censure."  If  this  had  been  said,  then 
indeed  the  refusal  to  retract  would  have  been  inde 
fensible. 

But  do  you  believe,  gentlemen,  that  if  that  had 
been  the  language  of  General  Warfield,  Mr.  Spreck 
els  would  not  at  once  have  ordered  a  retraction 

20 


VON    SCHROEDER   vs.    SPRECKELS 

published?  Do  you  believe  it,  knowing  the  rules 
of  fairness  and  justice  which  he  had  prescribed  from 
the  start  for  the  conduct  of  his  paper?  Do  you 
believe  it,  knowing  how  he  exercised  his  authority 
on  the  night  of  the  loth  of  October,  when  he  sup 
pressed  the  publication  of  the  Palace  Hotel  episode? 
Do  you  believe  it,  knowing  that  his  first  thought 
after  reading  the  Bulletin  was  to  send  for  General 
Warfield,  to  ascertain  from  his  own  lips  whether  a 
wrong  had  been  done,  and  whether  there  was  just 
cause  for  redress?  You  do  not  believe  it.  You 
know  that  the  promptings  of  his  own  heart,  the 
uniform  policy  of  his  paper,  the  considerateness 
which  he  had  already  shown  would  all  have  irresisti 
bly  impelled  him  to  cause  such  a  retraction  to  be 
published.  But  General  Warfield  made  no  such 
statement.  To  retract  in  the  face  of  what  he  had 
said  would  have  been  to  falsify  the  truth. 

Permit  me  to  submit,  in  addition  to  all  this,  that 
the  plaintiff's  conduct  since  the  publication  has  been 
such  as  to  confirm  Mr.  Spreckels's  conviction  that 
the  facts  of  the  article  were  true  and  its  strictures 
deserved.  The  publication  was  made  on  the  25th 
of  October,  1899,  about  sixteen  months  ago.  As 
the  plaintiff  claims  that  it  was  both  unjust  and 
untrue,  it  behooves  us  to  ask  whether  his  subse 
quent  course  was  that  of  an  innocent  and  injured 
man.  What  would  such  a  one  have  done  ?  Would 
he  not  have  sought  the  person  who  had  wronged 
him,  and,  strong  in  the  consciousness  of  his  inno- 


21 


ARGUMENT 

cence,  have  said:  "You  have  done  me  an  injustice. 
You  have  brought  undeserved  suffering  upon  me 
and  mine.  The  things  you  have  published  are  not 
true.  The  strictures  you  have  made  are  unwar 
ranted.  Of  all  this  I  can  give  you  proof.  If  I  do, 
may  I  not  appeal  to  you  to  right  the  wrong  you 
have  done?"  Or,  if  he  shrank  from  going  person 
ally,  would  he  not  have  sent  some  representative  in 
his  stead?  Would  he  not  have  said  to  some  friend 
or  attorney:  "Go  to  the  publisher  of  this  paper. 
Satisfy  him  that  this  article  is  not  true.  Impress 
upon  him  the  pain  and  suffering  which  it  is  calcu 
lated  to  inflict.  Appeal  to  his  sense  of  justice  to 
set  me  right  before  the  world?"  Would  not  this,  I 
take  leave  to  ask  you,  have  been  the  course  pursued 
by  an  innocent  and  wronged  man?  But  nothing  of 
the  kind  was  done  by  the  plaintiff.  Neither  in  per 
son  nor  by  representative  did  he  communicate  with 
Mr.  Spreckels,  nor  question  the  truth  or  the  justice 
of  the  article,  nor  seek  to  prove  the  groundlessness  of 
its  accusations,  nor  ask  for  reparation.  His  conduct 
throughout  was  that  of  a  man  conscious  of  guilt. 
Instead  of  thus  seeking  that  redress  which,  had  it 
been  deserved,  he  well  knew  Mr.  Spreckels's  sense 
of  fairness  would  gladly  have  accorded,  he  preferred 
to  demand  it  in  a  court,  where,  by  means  of  techni 
cal  devices,  he  might  hope  to  shut  out  the  truth. 
He  sought  not  for  reparation,  but  for  money. 

May  I  not  at  this  point,   therefore,  confidently 
hope  to  have  established  to  your  satisfaction  that  the 

22 


VON   SCHROEDER   vs.    SPRECKELS 

charge  that,  in  the  publication  of  this  article,  Mr. 
Spreckels  was  actuated  by  malice  is  unfounded? 

I  think  I  am  warranted  in  the  statement  that  the 
learned  counsel  is  by  this  time  convinced  that  it  is 
unfounded;  for,  in  despair  of  making  good  his 
accusation  of  actual  malice,  he  has  sought  to  estab 
lish  malice  by  imputation.  It  is  not  doubtful  that, 
though  one  may  not  be  actuated  by  feelings  of  per 
sonal  animosity,  yet  his  conduct  may  be  so  reckless, 
his  disregard  of  the  rights  of  others  so  wanton,  as  to 
warrant  the  inference  of  a  condition  of  mind  equiva 
lent  to  actual  malice.  Having  endeavored  to  refute 
— having,  I  hope,  refuted — the  charge  of  actual 
malice,  I  am  now,  therefore,  brought  to  consider  the 
question  of  imputed  malice.  I  shall  here  endeavor 
to  show  circumstances  which  prove  that  the  conduct 
of  the  Call  was  neither  wanton  nor  reckless.  In 
order  to  do  this,  I  am  forced  to  enter  into  a  brief 
examination  of  the  origin  of  the  article  in  question. 

How,  then,  did  that  article  originate?  In  the 
year  1899,  Mr.  Francis  L.  Perkins  acted  here  as  the 
correspondent  and  representative  of  the  Call.  Early 
in  October  of  that  year,  he  made  a  report  to  the 
general  manager,  relating  to  the  conduct  of  Baron 
von  Schroeder  at  the  Hotel  Rafael,  and  the  con 
sequences  which  that  conduct  was  calculated  to 
bring  about.  That  report  was  as  follows: — 

"  That  Mrs.  Warfield  had  informed  him  that  the 
General  would  be  obliged  to  give  up  the  lease  of  the 
Hotel  Rafael,  on  account  of  Baron  von  Schroeder's 

23 


ARGUMENT 

profligate  conduct;  that  for  months  the  conduct  of 
the  Baron  toward  the  lady  guests  of  the  hotel  had 
been  such  that  it  had  grown  notorious;  that  he  had 
insulted  women;  that  there  were  other  women  who 
were  on  such  intimate  terms  with  him  that  he  could 
not  insult  them,  but  that  his  conduct  with  them  had 
been  an  insult  to  decent  women  at  the  hotel;  that 
his  conduct  had  not  been  confined  to  the  hotel,  but 
had  been  carried  on  at  roadside  resorts  with  the 
guests  of  the  hotel,  and,  in  particular,  at  a  place 
called  Pastori's,  or  Fairfax  Villa;  that  he  had  taken 
guests  of  the  hotel  there,  and  his  conduct  had  been 
such  that  it  had  become  noised  about  the  town,  and 
that  these  stories  were  reflecting  seriously  upon  the 
hotel;  that  his  carousals  around  the  hotel  with  mem 
bers  of  both  sexes  had  been  such  that  General  War- 
field  had  been  compelled  to  make  repeated  protests 
to  him,  and  that,  if  that  conduct  did  not  cease,  the 
Warfields  would  be  obliged  to  give  up  their  lease; 
that  she  did  not  believe  that  that  conduct  would 
cease,  because  she  did  not  believe  the  leopard  could 
change  its  spots." 

This  report,  you  will  recall,  was  based  upon  an 
interview  which  Mr.  Perkins  had  had,  in  the  rear 
office  of  the  hotel,  with  General  Warfield  and  his 
wife.  It  was  an  echo  of  what  had  been  said  to  him 
by  Mrs.  Warfield,  confirmed  by  the  tacit  assent  of 
her  husband.  That  Mrs.  Warfield  made  the  state 
ment  as  reported  has  not  been  questioned.  Mr. 
Perkins  testifies  to  it;  and  the  failure  of  the  plaintiff 
to  call  either  General  Warfield  or  his  wife  to  con- 

24 


VON    SCHROEDER   vs.    SPRECKELS 

tradict  him  is  an  admission  of  the  truthfulness  of 
his  testimony.  Indeed,  throughout  the  conduct  of 
this  case,  that  evidence  has  been  accepted  as  true. 
Mr.  Perkins  is  one  of  the  few  who  have  escaped  the 
general  charge  of  perjury  so  broadly  fulminated  by 
the  learned  counsel  against  our  witnesses. 

In  investigating  the  origin  of  this  article,  we 
start  out,  then,  with  the  undisputed  fact  that,  early 
in  October,  1899,  in  the  presence  of  her  assenting 
husband,  Mrs.  Warfield,  speaking  to  one  whom  she 
knew  to  be  the  correspondent  of  a  great  metropoli 
tan  journal,  made  these  statements  touching  the 
character  of  the  conduct  of  the  plaintiff;  and  the 
further  fact  that  the  correspondent  immediately 
reported  his  information  to  headquarters. 

The  next  step  brings  us  to  the  course  pursued 
after  the  reception  of  this  information.  What  did 
the  management  of  the  Call  do  ?  Did  it  seize  with 
avidity  upon  this  piece  of  interesting  information, 
coming  from  a  source  so  manifestly  reliable?  No. 
It  proceeded  with  caution.  It  deferred  action.  Mr. 
Leake  said  to  Mr.  Perkins:  "Wait  until  we  have 
a  confirmation  of  these  statements.  Wait  until  we 
learn  that  there  is  substance  enough  in  them  to  end 
in  the  threatened  culmination.  If  it  shall  turn  out 
that  the  Warfields  are  indeed  compelled  by  the 
Baron's  conduct  to  give  up  the  lease  of  the  hotel, 
your  story  will  have  materialized.  It  will  have 
assumed  a  tangible  shape.  The  giving  up  of  the 
lease  will  become  a  matter  of  official  record  and 

25 


ARGUMENT 

public  notoriety.  Then  will  we  be  authorized  to 
acquaint  the  public  with  all  the  facts."  Mr.  Leake 
accordingly  withheld  for  the  time  being  all  publica 
tion.  This,  too,  is  undisputed. 

What  happened  next?  On  the  24th  of  that 
month,  Mr.  Perkins — who,  in  pursuance  of  his 
instructions,  had  kept  in  touch  with  the  matter — 
telephoned  to  Mr.  Leake  that  the  lease  of  the  hotel 
had  been  surrendered  by  the  Warfields,  and  that 
the  formal  documents  were  to  be  executed  on  the 
following  day.  What  did  Mr.  Leake  do?  Did  he 
unquestioningly  accept  the  statement  of  his  corre 
spondent?  No.  In  consonance  with  the  spirit  of 
the  instructions  which  Mr.  Spreckels  had  from  the 
start  laid  down, — that  is,  to  publish  nothing  until 
after  every  available  source  of  information  had  been 
exhausted, — he  at  once  telephoned  to  General  War- 
field  to  be  informed  whether  it  were  true  that  he  had 
given  up  the  lease  of  the  hotel.  The  General 
regretted  that  the  news  had  got  out,  but  stated  that, 
since  it  had,  if  Mr.  Leake  would  come  to  him  in 
person,  he  would  give  him  the  facts  and  necessary 
explanations.  Though  the  duties  of  Mr.  Leake's 
position  as  general  manager  obviously  did  not  per 
mit  him  to  act  as  an  interviewer  or  gatherer  of  news, 
nevertheless,  leaving  the  more  important  labors  of 
his  office,  he  proceeded  in  person  to  the  California 
Hotel  to  see  General  Warfield. 

What  took  place  at  that  interview?  Upon  that 
subject  the  record  is  so  complete,  the  bulwark  of 

26 


VON   SCHROEDER   vs.    SPRECKELS 

proof  so  impregnable,  that  the  learned  counsel  has 
not  even  attempted  to  assail  it.  As  authentic 
sources  of  information,  we  have,  first,  the  testimony 
of  Mr.  Leake;  secondly,  that  of  Mr.  Raymond,  the 
reporter  who  accompanied  him;  and,  thirdly,  the 
notes  which  the  latter,  writing  down  the  words  as 
they  fell  from  the  General's  lips,  made  at  the  time. 
What,  then,  was  the  statement  thus  made,  on  the 
evening  of  the  25th  of  October,  1899?  It  is  this: — 

"  That  the  Baron's  conduct  had  brought  scandal 
on  the  hotel,  and  had  driven  many  respectable  people 
away;  that  he  had  acted  like  a  low,  vile  character; 
that  there  was  a  certain  prominent  society  woman  of 
San  Rafael  whose  relations  to  the  Baron  were  liable 
to  become  a  public  scandal  at  any  time;  that  she  was 
in  the  habit  of  inviting  young  women  to  parties  or 
dinners  given  to  the  Baron,  and  abetting  him  in 
debauching  them;  that  poker  games  were  conducted 
by  the  Baron;  that  he  thought  he  could  insult  any 
woman  with  impunity;  that  his  presence  at  the  golf 
links  had  driven  respectable  people  away;  that  a 
young  woman  who  had  come  to  the  hotel  a  respecta 
ble  girl,  but  susceptible  to  flattery,  of  which  he  was 
a  past  master,  had  been  ruined  by  him;  that  he  had 
debauched  her  right  there  in  the  hotel;  that  another 
one  had  been  degraded  by  the  machinations  of  the 
Baron  and  his  brother;  that  they  had  ruined  the  good 
name  of  the  hotel,  for  the  Baron  took  no  pains  to 
cover  up  these  acts,  but  rather  took  pride  in  flaunt 
ing  them;  that  guests  had  complained  repeatedly  of 
his  conduct;  that  he  followed  women  through  the 

27 


ARGUMENT 

grounds  of  the  hotel  and  ogled  them  from  the  veranda; 
that  an  elderly  lady  and  her  two  daughters  com 
plained  that  he  would  follow  them  about  the  grounds, 
bobbing  up  here  and  there  and  in  every  way  making 
himself  so  obnoxious  that  they  finally  left." 

With  this  statement  Mr.  Leake  returned  to  the 
general  office.  Let  me  briefly  foot  up  the  sum  of 
his  information  at  that  point  of  time.  First,  he  had 
knowledge  of  the  episode  in  which  Baron  von 
Schroeder  had  been  involved  in  the  Palace  Hotel  — 
the  episode  whose  publication  Mr.  Spreckels  had 
vetoed  on  the  loth  of  that  month;  secondly,  he  had 
the  statement  of  Mrs.  Warfield,  made  at  the  Hotel 
Rafael,  as  communicated  to  him,  in  the  same  month, 
by  Mr.  Perkins;  thirdly,  he  had  the  statement 
which  General  Warfield,  under  circumstances  afford 
ing  ample  warranty  of  accuracy  and  truth,  had  just 
made;  fourthly,  he  had,  as  an  ultimate  confirmation 
of  the  whole  matter,  the  character  and  position  of 
his  informant,  a  general  in  our  militia,  a  man  of  ripe 
years  and  extensive  experience. 

With  all  this  before  him,  how  could  Mr.  Leake 
doubt  the  accuracy  of  his  information?  Knowing 
these  facts  to  exist,  what  was  he  to  do?  It  was  his 
duty  to  gather  and  to  publish  news  of  general  and 
public  interest.  He  ordered  this  published.  Who 
will  say,  that,  in  so  doing,  he  acted  without  due  cir 
cumspection?  Who  will  say  that  he  had  not  exer 
cised  every  precaution  that  the  most  rigorous 
prudence  could  exact?  Place  yourselves  in  his  shoes. 

28 


VON    SCHROEDER   vs.    SPRECKELS 

Imagine  yourselves  charged  with  the  duties  which 
then  rested  upon  him.  If  so  circumstanced,  would 
you  have  believed  that  information  coming  to  you 
from  such  a  variety  of  reliable  sources  was  unworthy 
of  belief?  Would  you,  on  that  ground,  have  with 
held  it  from  publication? 

I  now  take  leave  of  the  question  of  malice.  In 
view  of  the  circumstances  which  surround  that  sub 
ject,  am  I  not  warranted  in  demanding  from  you,  at 
this  point,  your  assent  to  the  proposition  that 
neither  is  Mr.  Spreckels  chargeable  with  malice  in 
fact,  nor  is  Mr.  Leake  taxable  with  malice  by  infer 
ence  ?  Recalling,  as  concerns  Mr.  Spreckels,  the 
general  instructions  which  he  had  given  from  the 
start  for  the  conduct  of  his  paper ;  the  rigorous  and 
unvarying  enforcement  of  those  instructions ;  his  for 
bearance,  when  he  suppressed  the  publication  of  the 
Palace  Hotel  episode ;  his  absence  from  the  city 
during  the  whole  of  the  time  elapsing  from  the 
inception  to  the  publication  of  the  article  in  ques 
tion  ;  his  prompt  sending  for  General  Warfield, 
when  he  read  the  letter  in  the  Bulletin,  to  learn 
whether  an  injustice  had  been  done ;  the  assurance 
he  then  received  from  the  General  that  the  facts 
stated  in  the  article  were  true, —  recalling  all  this,  I 
ask  you  to  acquit  Mr.  Spreckels  of  this  odious 
charge  of  malice  in  fact.  As  regards  Mr.  Leake, 
remembering  the  information  which  he  received 
from  Mr.  Perkins  early  in  October ;  the  incidents 
of  the  Palace  Hotel  episode,  which  he  learned  on 

29 


ARGUMENT 

the  loth  of  that  month;  his  suspending  the  publi 
cation  of  the  facts  communicated  to  him  by  Mr. 
Perkins  until  they  should  be  substantiated  by  some 
event  of  a  public  nature ;  the  corroborative  infor 
mation  which  he  received  from  Mr.  Perkins  on  the 
24th  of  October ;  his  interview  with  General  War- 
field  on  the  evening  of  that  day ;  the  positive  state 
ments  then  made  by  the  General  in  the  presence  of 
the  reporter,  Mr.  Raymond ;  the  character  and 
standing  of  General  Warfield, —  remembering  all 
this,  I  call  upon  you  to  declare  that  Mr.  Leake 
acted  throughout  with  commendable  prudence.  I 
call  upon  you  to  acquit  him  of  remissness  or  negli 
gence,  and,  therefore,  of  malice  by  inference. 

If  I  have  dwelt  at  some  length  upon  this  ques 
tion  of  malice,  it  is  not  only  because  justice  requires 
that  my  client  should  be  fully  cleared  of  the  grave 
imputation  cast  upon  him  by  the  learned  counsel, 
but  because  of  the  importance  of  the  subject, 
viewed  from  a  purely  legal  standpoint.  In  cases  of 
this  character,  the  damages  which  it  is  in  the  power 
of  the  jury  to  award  are  of  two  kinds.  The  law 
calls  the  first  compensatory,  and  the  second  punitive. 
It  may  not  be  improper  to  make  some  explanation 
of  these  terms,  in  order  to  prepare  your  minds  for 
the  reception  of  the  ideas  which  his  Honor  will 
convey  to  you  through  his  charge. 

Any  one  may  recover  compensation  for  the  injury 
occasioned  him  by  the  legally  unwarranted  act  of 
another.  And  if  the  act  was  prompted  by  malice, 

30 


VON   SCHROEDER   vs.    SPRECKELS 

actual  or  presumed,  he  may,  in  addition,  be  awarded 
such  sum  as  a  jury  shall  in  its  judgment  deem  an 
adequate  punishment  of  the  wrong-doer.  Take 
the  following  illustrations  :  If,  while  burning  off  the 
stubble  of  his  field,  a  farmer,  through  want  of  proper 
precaution,  permits  the  fire  to  spread  to  his  neigh 
bor's  house  and  consume  it ;  if,  by  negligent  han 
dling,  a  hunter  causes  his  fowling-piece  to  be 
discharged  against  his  companion's  dog  and  kill  it ; 
if  a  cabman  carelessly  upsets  his  hack  and  breaks 
the  arm  of  his  passenger, —  they  may  each  be  called 
upon  to  make  good  the  damage  they  have  caused. 
But  if  their  conduct  is  malicious, —  if  the  farmer 
purposely  sets  fire  to  the  dwelling,  if  the  hunter 
wantonly  shoots  the  animal,  if  the  cabman  with  in 
sults  and  blows  drags  his  patron  from  his  vehicle, — 
then  the  jury  may  be  called  upon  to  award,  in 
addition  to  mere  compensation,  such  an  amount 
as  it  may  deem  adequate  punishment  for  the  tur 
pitude  which  accompanies  the  injury.  The  same 
rule  applies  to  the  case  at  bar.  Reputation  is  a 
valuable  possession,  held  by  a  title  as  valid  as  that 
which  secures  the  enjoyment  of  lands  and  chattels 
or  the  safety  of  life  and  limb.  Inasmuch  as  it 
injures  reputation,  a  libel  is  actionable.  The  per 
son  injured  has  a  right  to  be  made  whole  for  the 
damage  which  it  inflicts  —  the  loss  in  reputation  he 
has  suffered.  But,  beyond  this,  if  the  libel  is  not 
only  false,  but  the  publisher,  knowing  it  to  be  so, 
gives  it  out  for  the  purpose  of  gratifying  his  malice, 

31 


ARGUMENT 

then  the  law  calls  upon  the  jury  to  award  not  only 
compensation  to  the  victim,  but  punishment  against 
the  wrong-doer. 

With  this  explanation,  gentlemen,  you  will  per 
ceive  that,  from  a  legal  standpoint,  all  I  have  so  far 
said  goes  merely  to  prove  that,  whatever  else  you 
may  do  in  this  case,  there  is  no  room  for  awarding 
damages  against  Mr.  Spreckels  by  way  of  punish 
ment. 

This  leaves  for  consideration  the  question  whether 
there  is  any  ground  for  rendering  against  him  a  ver 
dict  by  way  of  compensation.  In  other  words,  if 
the  facts  afford  no  warrant  for  punishing  Mr. 
Spreckels,  do  they  afford  any  for  awarding  compen 
sation  to  Baron  von  Schroeder?  This  depends 
upon  two  considerations  :  First,  is  there  any  room 
for  awarding  a  verdict  against  Mr.  Spreckels  at  all  ? 
and,  if  so,  secondly,  what  considerations  should 
have  scope  in  determining  the  amount  of  that  ver 
dict  ?  Briefly,  has  the  plaintiff  been,  in  law,  injured 
by  this  article  ?  and,  if  so,  to  what  extent  ? 

In  an  action  for  libel,  gentlemen,  no  recovery 
whatever  is  allowable  when  the  words  uttered  are 
true.  If,  therefore,  the  statements  contained  in  the 
article  in  question  were  substantially  correct, —  if  the 
conduct  of  the  plaintiff  at  the  Hotel  Rafael  revealed 
him  to  the  eyes  of  the  community  as  a  man  of  the 
character  delineated  in  that  article, —  that  ends  your 
inquiry.  In  this  State  no  one  can  be  held  liable  for 
uttering  or  publishing  the  truth,  however  injurious 

32 


VON    SCHROEDER   vs.    SPRECKLES 

to  another  the  results  may  be.  The  policy  of  our 
law  requires  that  private  and  public  affairs  shall  be 
carried  on  upon  a  basis  of  truth ;  and  whoever,  by 
word  of  mouth,  or  through  print,  furthers  that 
policy  commits  no  wrong,  however  grievous  may 
be  the  hurt  which  his  utterances  may  cause  to  the 
feelings  or  the  business  of  another.  To  all  who 
complain  of  the  utterance  of  the  truth,  the  law 
answers  :  <c  You  have  no  right  so  to  conduct  your 
selves,  or  so  to  transact  your  affairs,  as  that  truth 
will  injure  either." 

Such  being  the  law, — and  that  it  is  you  will  learn 
from  his  Honor's  charge, —  the  only  remaining 
question  is  this  :  Is  the  article  in  question  in  sub 
stance  true  ?  I  pray  your  attention,  while  I  briefly 
rehearse  the  testimony  which  tends  to  prove  — 
which,  I  humbly  submit,  does  prove — the  substan 
tial  truth  of  the  charges  contained  in  the  article.  Be 
pleased  to  bear  in  mind  that  the  question  here  is : 
Was  the  conduct  of  Baron  von  Schroeder,  as  mani 
fested  and  known  at  the  Hotel  Rafael,  of  such  a 
character  that  it  may  properly  be  characterized  as 
that  of  an  immoral  and  profligate  man  ? 

Examine,  first,  his  conduct  in  connection  with 
drinking-bouts  and  nightly  carousals  with  female 
companions  at  the  hotel. 

Bernard  Peters,  a  waiter  there  from  May  to  Sep 
tember,  1898,  testifies  that  the  plaintiff  was  in  the 
habit  of  drinking  in  the  club-house  with  women, 
staying  at  times  as  late  as  four  o'clock  in  the  morn- 

33 


ARGUMENT 

ing,  the  women,  to  use  his  own  words,  "drinking 
often  more  than  they  could  stand."  William  S. 
Ballard,  the  manager  in  the  summer  of  1898,  states 
that  the  plaintiff  frequented  the  club-house  with 
women  at  late  hours  of  the  night,  the  party  usu 
ally  disposing  of  four  bottles  of  "Dry  Mumm," 
their  favorite  wine.  Carl  Schaubye,  a  waiter 
there,  while  making  substantially  the  same  state 
ment,  adds  that  he  had  seen  one  of  the  women  in  a 
state  of  intoxication.  Thomas  Flaherty,  employed 
about  the  stables,  states  that  in  these  nightly  carou 
sals  the  women  were  often  intoxicated.  He  de 
scribes  how,  on  one  occasion,  when  the  drinking 
had  commenced  early  in  the  evening,  a  young  girl, 
at  an  hour  past  midnight,  fell  fainting  from  her 
chair ;  how  a  physician  had  to  be  sent  for ;  and  how 
she  was  secretly  taken  into  the  hotel  through  the 
side-door. 

I  pass  next  to  the  gambling  at  the  club-house. 
Upon  this  subject  the  testimony  is  equally  explicit. 

One  of  the  plaintiff's  own  witnesses,  speaking  of 
the  gambling  parties,  at  which  poker  was  the  game, 
says, —  I  quote  his  own  language, — "they  usually 
commenced  at  eight  o'clock  in  the  evening."  Carl 
Schaubye,  already  mentioned,  states  that  they  lasted, 
as  a  rule,  until  three  or  four  in  the  morning.  He 
relates  that  on  one  occasion,  when  the  group  con 
sisted  of  one  single  woman  and  half  a  dozen  men, 
he  came  into  the  room  and  stated  that  Mrs.  War- 
field,  the  wife  of  the  manager,  had  ordered  that  the 

34 


VON    SCHROEDER   vs.    SPRECKELS 

lights  be  put  out.  The  woman — who,  the  witness 
says,  was  intoxicated — became  indignant,  and  would 
not  have  it  so.  Schaubye  afterward  returned.  Of 
that  return  he  says  :  "  I  came  again  later,  and  told 
them  that  Mrs.  Warfield  insisted  upon  the  lights 
being  put  out ;  and  the  Baron  said  that  he  wished 
to  play  three  or  four  more  games,  and  then  they 
would  go." 

Take  next  the  plaintiff's  demeanor  toward 
women. 

Upon  that  subject,  Mr.  Francis  L.  Perkins  testi 
fies  that  on  one  occasion  which  he  specifies  he  saw 
the  plaintiff  and  his  brother,  in  company  with  two 
ladies,  at  Pastori's  Fairfax  Villa.  It  appeared  to  the 
witness — to  express  it  in  his  own  language — that 
"the  Baron  was  pretty  fresh  with  women;  entirely 
too  loving  with  a  lady  for  a  married  man  ;  his  atten 
tions  to  her  a  little  too  marked  for  the  attentions  of 
a  married  man  to  a  married  woman  in  public."  He 
added  to  this,  in  his  statement  to  Mr.  Leake,  that 
the  Baron's  reputation  in  the  town  of  San  Rafael  in 
regard  to  women  was  bad — very  bad  indeed.  Ber 
nard  Peters,  the  waiter  at  the  club-house,  says  that 
once,  when  he  brought  wine  into  one  of  the  rooms, 
he  found  a  certain  woman  seated  on  the  Baron's 
lap ;  and  that  on  another  occasion,  in  the  same 
place,  the  Baron  had  his  arm  around  her  waist  and 
was  calling  her  "  My  dear.''  He  adds  that  he  had 
been  asked  by  the  Baron  to  give  him  warning  if, 
while  he  was  at  the  club-house,  his  wife  came  in 

35 


ARGUMENT 

sight.  Edward  R.  Ross  testifies  that  the  Baron 
was  in  the  habit  of  paying  marked  attentions  to  a 
certain  married  woman  ;  that  he  had  frequently  seen 
him  seated  on  the  porch  of  the  club-house,  while 
the  lights  were  turned  out,  holding  her  upon  his 
lap.  William  S.  Ballard  states  that  at  one  time, 
when  the  Baron  and  his  brother  were  in  the  club 
house  with  two  women  —  one  married  and  the  other 
unmarried — drinking,  he  brought  in  a  bottle  of 
wine ;  that  the  unmarried  woman  took  the  bottle, 
saying,  "This  is  for  my  boy,  Alex,  and  me";  that 
he  was  then  ordered  to  bring  in  another  bottle ;  and 
that,  when  he  came  in  with  it,  he  found  the  women 
seated  on  the  men's  laps  —  the  married  one  on  the 
Baron's,  and  the  unmarried  on  his.  brother's.  He 
adds  that  once,  at  an  hour  past  midnight,  the  Baron 
gave  him  five  dollars,  telling  him  to  keep  watch  for 
his  wife,  and  if  she  made  her  appearance  at  once  to 
notify  him.  Gus  Lally  testifies  that  he  had  seen 
the  Baron  scuffling  and  scrambling  around  the  room 
with  his  female  companions  ;  that  the  party  generally 
consisted  of  four,  the  Baron,  his  brother,  and  two 
women ;  that  they  usually  commenced  drinking  to 
gether  in  one  room,  but  frequently,  after  staying 
there  for  a  time,  separated  into  pairs  —  the  Baron 
and  one  of  the  women  remaining  in  the  room,  and  his 
brother  and  the  other  retiring  to  a  separate  apart 
ment.  Thomas  Flaherty  tells  you  that  one  even 
ing  he  saw  the  Baron  in  the  Maze,  seated  on  a 
bench  with  a  woman,  one  arm  around  her  waist,  the 

36 


VON    SCHROEDER   vs.    SPRECKELS 

other  upon  her  breast,  and  his  cheek  pressed  close 
to  hers.  Raymond  O'Neil,  one  of  the  bell-boys, 
states  that  he  had  frequently  seen  the  Baron  com 
ing,  in  the  afternoon,  out  of  the  room  of  a  particu 
lar  woman,  whose  husband's  business  called  him  to 
San  Francisco  in  the  daytime.  John  Bailey,  a 
waiter  in  the  dining-room,  testifies  to  a  scene  which 
he  witnessed  one  afternoon  in  a  grove  upon  a  slope 
back  of  the  hotel.  You  have  heard  that  testimony, 
and  I  will  not  again  assail  your  ears  with  a  repeti 
tion  of  its  details. 

There  is  one  episode,  gentlemen,  connected  with 
this  branch  of  the  case,  to  which  I  desire  to  invite 
your  special  attention.  The  circumstances  of  that 
episode,  though  incomplete,  have  been  sufficiently 
brought  to  light.  And  if,  when  I  shall  -have  re 
hearsed  the  facts  which  are  in  evidence,  it  shall 
appear  that,  owing  to  technical  objections  interposed 
by  the  learned  counsel,  certain  links  in  the  chain 
are  missing,  I  feel  confident  that  your  good  sense 
and  knowledge  of  life  will  readily  supply  them. 

Baron  von  Schroeder  was  in  the  habit  of  send 
ing  at  night  to  a  livery-stable  in  the  neighborhood 
of  the  hotel  for  teams.  These  were  used  to  go  out 
upon  what  one  of  the  witnesses  has  called  "  the 
Baron's  escapades."  One  evening  in  the  summer 
of  1898,  a  message  reached  the  stable  ordering  a 
six-seater  for  what  was  known  at  the  hotel  as  "  the 
Baron's  party."  Pursuant  to  orders,  the  rig  was 
taken  from  the  stable  at  about  half-past  ten,  not  to 

37 


ARGUMENT 

any  of  the  entrances  of  the  hotel,  but  to  a  secluded 
spot  outside  the  grounds.  The  party,  consisting  of 
a  bridegroom,  with  his  bride,  and  the  Baron  and  a 
female  companion,  shortly  thereafter  came  to  the 
spot.  The  driver,  Jewell,  who  had  brought  up  the 
rig,  was  ordered  to  await  their  return.  It  had 
originally  been  intended,  it  would  seem,  that  the 
Baron's  brother  should  be  of  the  party;  for,  as  they 
started  off,  the  bride  said  to  the  driver,  "  You  tell 
Baron  Alex,  when  he  comes  up,  to  follow  us  to 
Fairfax  Villa/'  and  the  plaintiff  added,  "  Tell  him 
that  he  will  find  us  at  Pastori's."  The  character  of 
this  resort  as  a  roadside  tavern,  some  three  miles 
distant  from  the  hotel,  you  have  learnt  from  the 
evidence.  The  party  must  have  reached  it  about 
eleven  o'clock.  How  they  spent  the  time  there  we 
were  prevented  by  objection  of  the  learned  counsel 
from  proving. 

The  next  scene  takes  place  about  one  o'clock 
past  midnight,  when  the  team  returns  with  the 
bridegroom  and  the  other  woman  —  the  Baron  and 
the  bride  being  left  behind.  We  were  not  allowed 
to  prove  the  bridegroom's  condition.  Conjecture  it 
from  the  fact  that  he  came  back  without  his  bride, 
and  had  to  be  taken  out  of  the  rig  and  hurried  into 
the  hotel  by  a  side-door.  The  younger  Baron  and 
the  bride's  sister  met  the  rig  upon  its  return. 
Imagine  the  latter's  amazement  and  alarm,  when 
she  found  that  her  sister  and  the  plaintiff  were 
missing.  In  her  consternation,  she  gets  her  T-cart 

38 


VON    SCHROEDER   vs.    SPRECKELS 

from  the  stable  and  starts  out  in  the  darkness  of  the 
night  to  seek  the  absent  couple.  She  finds  them 
where?  We  were  not  permitted  to  tell.  What 
doing?  We  were  not  allowed  to  prove.  But  is 
evidence  needed,  gentlemen,  to  picture  what  had 
detained  the  pair  at  Pastori's  ? 

The  last  scene  takes  place  at  about  half-past  three 
in  the  morning,  when  two  vehicles,  some  distance 
apart,  approach  the  hotel.  One  of  them  is  the 
young  girl's  T-cart,  and  the  other  the  Baron's  rig. 
The  former  contains  the  bride  and  her  sister,  and 
the  latter  the  Baron  and  his  brother.  Jewell  meets 
them  near  the  spot  where  he  had  been  ordered  to 
remain.  He  has  described  in  detail  how  they  came, 
how  they  entered  the  hotel  by  different  doors,  and 
in  what  state  of  helpless  intoxication  the  bride  was 
when  taken  out  of  the  cart. 

To  all  this  testimony,  gentlemen, — to  the  state 
ments  of  all  these  witnesses, —  what  does  the  learned 
counsel  reply?  He  pursues  a  course  which,  I  am 
forced  to  confess,  appears  to  me  most  extraordinary. 
He  first  points  out  that  these  witnesses  all  come 
from  the  humbler  walks  of  life.  They  are,  he  says, 
bell-boys,  waiters,  stablemen,  and  bar-tenders.  I  do 
not  deny  that  they  are  humble.  I  know  that  they 
are  poor.  I  admit,  if  it  please  the  learned  counsel, 
that,  unlike  his  client,  they  make  no  pretense  to 
wealth;  that,  unlike  him,  they  dwell  in  no  palatial 
mansion;  that,  unlike  him,  they  have  married  no 
millionaire's  daughter,  nor  received  at  her  hands,  nor 

39 


ARGUMENT 

squandered  in  revelry,  her  ample  fortune.  Acknowl 
edging  the  contrast,  I  even  go  further.  I  admit  that 
they  do  not  spend  their  nights  in  drink,  quaffing  wines 
of  renowned  vintages.  I  admit  that  they  do  not  sit 
up  with  elegant  and  fashionable  ladies  gambling  from 
early  eve  till  early  morn.  I  admit  that  their  man 
ners  are  not  attractive  enough  and  their  arts  not 
sufficiently  fascinating  to  lure  young  brides  from 
the  side  of  their  husbands  and  take  them  to  dis 
reputable  haunts.  Yet,  admitting  all  this,  I  fail  to 
discern  in  it  anything  disentitling  their  testimony  to 
challenge  comparison  with  that  of  the  noble  Baron. 
Still  less  do  I  perceive  in  it  any  warrant  for  the 
attack  which  the  learned  counsel  had  made  upon 
them.  He  has  successively  called  them  fellows,  hobo 
witnesses,  rogues,  scoundrels,  liars,  sneak-thieves, 
perjurers,  unconvicted  felons,  vultures  attracted  by  a 
carcass,  low  comedians  of  perjury,  men  who  should 
be  in  the  penitentiary,  "witnesses  who  can  be  bought 
like  a  bunch  of  asparagus."  The  virulence  with 
which  they  have  been  assailed  has,  I  feel  confident, 
no  parallel  in  the  annals  of  the  bar  of  this  State. 

Against  two  of  the  witnesses  the  learned  counsel 
has  fulminated  the  special  thunderbolts  of  his  vitu 
peration —  Bailey  and  Jewell.  Of  Bailey,  he  has 
been  pleased  to  tell  you  that,  if  the  police  records 
were  searched,  it  would  be  found  that  some  of  his 
long  absences  would  be  accounted  for,  and  that 
during  his  short  stays  an  unconvicted  felon  was 
about;  that  if  he  were  the  Chief  of  Police,  and  a 

40 


VON    SCHROEDER   vs.    SPRECKELS 

burglary  were  committed,  he  would  arrest  Bailey  at 
once  on  suspicion;  that  his  look  was  of  the  kind 
that  one  meets  in  docks  of  courts  and  in  prison 
cells;  that  a  man  with  such  a  face  should  be  in  the 
penitentiary. 

Where  is  the  warrant  for  all  this  vilification  ? 
Bailey's  deposition  was  taken  on  the  26th  of  June 
last  —  six  months  ago.  The  learned  counsel  was 
present.  To  that  deposition  he  has  referred  here  in 
his  cross  -  examination.  Did  Bailey  at  that  time 
say  anything  different  from  what  he  has  said  here  ? 
No.  I  am  warranted  in  saying  that  he  did  not ; 
because,  if  he  had,  the  learned  counsel  would 
promptly  have  referred  to  the  deposition  and  con 
fronted  him  with  the  discrepancy.  Bailey,  then, 
related,  six  months  ago,  in  the  presence  of  the 
learned  counsel,  the  same  story  which  he  has  testi 
fied  to  here.  That,  if  the  scene  which  he  describes 
really  took  place,  it  holds  up  the  plaintiff  to  the 
scorn  of  every  right-minded  person  no  one  doubts. 
The  plaintiff,  then,  had  six  months  before  the 
commencement  of  this  trial  to  investigate  into  the 
character  and  antecedents  of  a  witness  whose  single 
testimony,  if  true,  is  fatal  to  this  case.  If  that  wit 
ness's  name  could  be  found  in  the  criminal  records 
of  the  police  department,  the  learned  counsel  would 
have  found  it,  and  would  have  proved  that  it  was 
there.  If  he  had  really  been  an  inmate  of  a  house 
of  punishment,  the  record  of  his  conviction  would 
have  been  produced.  If  he  had  ever  been  a  fugitive 

41 

D 


ARGUMENT 

from  justice,  that  fact  would  have  been  shown.  If 
his  reputation  is  bad,  he  would  have  been  impeached. 
But  nothing  of  the  kind  has  been  attempted. 
Bailey  is  not  a  criminal.  He  is  not  a  fugitive  from 
justice.  His  name  is  not  on  the  prison -books. 
His  past  life  has  not  been  such  as  the  counsel  has 
denounced.  His  character  in  the  community  is 
above  reproach.  He  is  secure  in  his  integrity 
against  all  attacks  save  one  —  denunciation  made  at 
a  time  and  place  when  he  is  powerless  to  answer  it. 
When  the  heat  of  the  contest  shall  have  passed, 
and  calm  reflection  resumed  its  sway,  I  feel  con 
vinced  that  the  learned  counsel  will  be  the  first  to 
acknowledge  that  it  is  hardly  generous  to  heap 
vituperation,  unwarranted  by  proof,  upon  the  head 
of  one  who,  if  he  should  rise  to  protest  against  its 
injustice,  would  expose  himself  to  punishment  for 
contempt. 

Jewell  has  also  been  made  a  special  target  for  the 
learned  counsel's  shafts.  His  testimony,  also,  if 
true,  constitutes  in  itself  a  complete  justification  of 
this  publication.  He,  therefore,  must  be  got  rid 
of  in  some  way.  And  what  is  the  way  ?  He  is 
denounced  as  a  man  without  character.  Upon  what 
evidence  ?  To  prove  that  he  does  not  bear  a  good 
reputation  among  his  neighbors  two  witnesses  have 
been  produced.  And  who  are  they?  Do  you 
remember,  gentlemen,  the  elder  Murray  ?  An  old 
man  tottering  upon  the  brink  of  the  grave,  he  is 
asked  the  simple  question  whether  he  is  the  father 

42 


VON   SCHROEDER   vs.    SPRECKELS 

of  another  witness,  who  has  just  sworn  he  is  his 
son,  and  he  answers  with  a  leer :  cc  I  suppose  so ; 
but  you  know  a  man  can  never  be  sure  of  those 
things."  And  this  is  said  within  a  stone's-throw  of 
the  house  where  the  mother  of  this  son  is  still 
iving.  Is  such  a  man  competent  to  impeach  the 
reputation  of  any  one  ?  A  man  whose  innate  per 
versity  and  ingrained  suspiciousness  would  make 
him  cast  a  doubt  upon  the  paternity  of  his  own 
child,  assail  the  fidelity  and  drag  into  the  mire  the 
character  of  his  gray-haired  wife, —  he  impeach  the 
reputation  of  any  one  ! 

This  man  and  his  son  —  and  you  recall  the  prov 
erb,  which  time  approves  true,  "  Like  father,  like 
son " — are  the  only  ones  whom,  after  the  most 
exhaustive  canvassing,  the  plaintiff  has  been  able  to 
bring  forward  to  testify  against  Jewell's  reputation. 
This,  taken  in  connection  with  the  fact  that  they  are 
both  at  this  very  moment  in  the  employ  and  pay  of 
the  plaintiff  as  coachmen,  and  the  fact  that,  out  of  a 
community  in  which  Jewell  has  spent  thirty  years 
of  his  life,  only  these  two  can  be  found  to  breathe  a 
word  in  disparagement  of  his  character,  and  the 
further  fact  that  witnesses  of  the  highest  respecta 
bility  and  standing  have  come  here  to  support  his 
good  name, —  this,  I  say,  justifies  me  in  declaring 
the  attempted  impeachment  of  Jewell  as  unwar 
ranted  and  unjustifiable. 

But,  why  this  denunciation  of  the  witnesses  ? 
Why  call  them  names  ?  Why  traduce  them  as  per- 

43 


ARGUMENT 

jurers  ?  Why  —  when  there  is  no  denial  —  no 
attempt  even  at  denial  —  of  the  substantial  truth  of 
their  testimony  ?  Let  me  briefly  rehearse  the  things 
which  they  have  testified  to  that  are  not  denied. 

Take  first  what  has  been  said  with  reference  to 
drinking.  What,  upon  that  subject,  does  the 
plaintiff  deny?  Does  he  deny  the  bouts  at  the 
club-house,  where  heavy  drinking  was  nightly  in 
dulged  in,  with  married  and  unmarried  women  as 
his  companions  ?  Does  he  deny  that  the  feasting 
was  often  prolonged  far  into  the  early  hours  of  the 
morning  ?  Does  he  deny  that  one  evening,  at  an 
hour  past  midnight,  one  of  the  party,  a  young  girl, 
fell  fainting  from  her  chair,  and  had  to  be  placed 
under  the  charge  of  a  physician?  No;  none  of 
these  things  does  he  deny. 

Take  next  what  has  been  said  about  the  gam 
bling.  Is  that  questioned  ?  Is  it  denied  that  the 
plaintiff  was  a  member  of  these  gambling  assem 
blages  with  women,  which,  commencing  early,  were 
prolonged  until  dawn  ?  Is  it  denied  that  drink 
accompanied  the  play?  Is  it  denied  that,  on  one 
occasion  at  least,  the  lights  were  not  put  out  until 
the  hotel  management  had  issued  peremptory  orders 
that  they  must  be  ?  No  ;  none  of  these  things  are 
denied. 

Take  lastly  the  plaintiff's  conduct  toward 
women.  Examine  first  the  episode  testified  to  by 
Jewell.  Is  not  every  essential  circumstance  of  this 
episode  confessedly  true?  Is  it  true  that  on  this 

44 


VON    SCHROEDER   vs.    SPRECKLES 

occasion,  at  about  half-past  ten  at  night,  the  plaintiff 
ordered  a  carriage  to  be  brought  outside  the  hotel 
grounds  to  a  secluded  spot,  where  he  could  meet  it 
unseen  ?  He  does  not  deny  it.  Is  it  true  that  the 
party,  consisting  of  himself,  with  a  female  compan 
ion,  and  a  bridegroom  with  his  bride,  got  into  the 
vehicle  and  ordered  the  driver  to  await  their  return  ? 
He  does  not  deny  it.  Is  it  true  that,  as  they 
started,  the  bride,  referring  to  a  couple  who  were  to 
join  them,  said  to  the  driver,  "You  tell  Baron  Alex, 
when  he  comes  up,  to  follow  us  to  Fairfax  Villa," 
and  that  he  added,  "Tell  him  that  he  will  find  us  at 
Pastori's"?  He  does  not  deny  it.  Is  it  true  that 
they  drove  to  Pastori's  ?  He  does  not  deny  it.  Is 
it  true  that  the  rig  returned,  at  about  one  o'clock  at 
night,  with  the  bridegroom  and  the  other  woman, 
and  that  he  and  the  bride  remained  behind  ?  He 
does  not  deny  it.  Is  it  true  that  he  and  the  bride 
did  not  start  on  their  way  back  until  her  sister  went 
after  them  and  forced  them  to  return  ?  He  does 
not  deny  it.  Is  it  true  that  he  came  back  to  the 
hotel,  after  three  o'clock  in  the  morning,  in  com 
pany  with  his  brother,  the  bride  and  her  sister  fol 
lowing  in  a  separate  vehicle  ?  He  does  not  deny  it. 
Is  it  true  that  each  couple  entered  the  hotel  by  sep 
arate  side  entrances  ?  He  does  not  deny  it. 

Furthermore,  he  does  not  deny  the  frequent 
visits,  during  the  absence  of  her  husband,  to  the 
married  woman's  room,  as  testified  to  by  the  wit 
ness  Raymond  O'Neill.  He  does  not  deny  that 

45 


ARGUMENT 

the  drinking  parties,  composed  of  himself,  his 
brother,  and  the  two  women,  after  having  com 
menced  the  evening  together  in  one  room,  often 
separated,  each  pair  thereafter  occupying  a  separate 
room,  as  testified  to  by  the  witness  Gus  Lally.  He 
does  not  deny  that  on  one  occasion,  when  the  waiter 
came  in,  a  married  woman  was  standing  by  him,  he 
having  his  arm  around  her  waist  and  calling  her  en 
dearing  names,  as  testified  to  by  the  witness  Bernard 
Peters. 

What,  then,  of  all  that  has  thus  been  testified  to 
by  these  witnesses  upon  the  subject  of  drinking, 
gambling,  and  conduct  toward  women  does  the 
plaintiff  deny  ?  Simply  that  on  any  of  these  occa 
sions  the  women  were  intoxicated.  He  thinks,  it 
would,  seem,  that  he  negatives  the  impropriety, 
wipes  away  the  sin,  and  restores  the  bloom  of 
maidenhood  and  virtuous  matronhood  to  the  cheeks 
of  his  female  companions  when  he  draws  the  line  at 
drunkenness. 

Comment  upon  this  attitude  is  difficult  to  make 
within  the  bounds  of  moderation.  Concede,  if  you 
please,  that  the  women  stopped  short  of  intoxica 
tion — does  that  mitigate  the  scandalous  character  of 
these  debauches  ?  What  is  the  condition  of  a 
woman  who  has  spent  the  night  in  a  club-house 
drinking  with  men  ?  What  is  her  moral  worth  ? 
What  value  do  you  set  upon  the  virtue  of  that 
young  girl  who,  in  one  of  these  carousals,  fell,  after 
midnight,  fainting  from  her  chair?  Admit,  if  you 

46 


VON   SCHROEDER   vs.    SPRECKELS 

please,  that  at  the  gambling  parties  none  of  the 
women  were  under  the  influence  of  liquor — what  say 
you  as  to  the  propriety  of  these  gambling  scenes  ? 
Grant,  if  you  please,  that  on  the  occasion  testified 
to  by  Jewell  the  bride,  when  she  returned  to  the 
hotel,  after  three  in  the  morning,  was  not  flustered 
with  wine — how  does  that  change  the  essential  char 
acter  of  the  happenings  of  that  night?  What  is 
your  judgment  upon  the  conduct  of  the  man — a 
man  of  mature  years,  prominent  position,  bearer  of 
a  title  which,  in  his  country  at  least,  is  a  badge  of 
distinction  and  a  pledge  of  honor — who  took  the 
lead  in  these  orgies  ?  Do  you  set  upon  it  the  seal 
of  your  approval?  Do  you  adjudge  the  journal 
which  held  it  up  to  public  censure  deserving  of 
punishment  ? 

I  desire  now  briefly  to  invite  your  attention  to 
certain  facts  which,  I  venture  to  think,  bring  out  in 
still  bolder  relief  all  that  I  have  said. 

In  the  first  place,  it  is  a  significant  circumstance 
that  the  plaintiff  has  not  called  General  Warfield  as 
a  witness.  That  the  learned  counsel  deemed  it 
important  to  have  it  appear  that  the  General  con 
troverted  the  facts  stated  in  the  article  in  question  is 
manifest.  For  that  purpose  he  offered  in  evidence, 
and  in  his  argument  dwelt  at  great  length  upon,  an 
alleged  letter  published  in  the  Bulletin,  which,  it  is 
said,  the  General  wrote  as  a  denial  of  the  facts 
stated  in  the  Call's  article.  As  to  this,  let  me 
remark,  in  the  first  place, — and,  if  your  Honor  will 

47 


ARGUMENT 

permit,  I  now  ask  an  instruction  to  that  effect, — 
that  there  is  not  a  particle  of  legal  evidence  to  show 
that  General  Warfield  ever  wrote  that  letter.  The 
letter's  superscription  is  "  My  Dear  Sir,"  and  its 
subscription  "Believe  me,  Very  truly  yours";  its 
author  professes  amazement  and  regret  at  the  pub 
lication  in  the  Call;  it  comes  apparently  from  a 
friend;  it  is  directed  to  the  plaintiff.  If  he  has 
received  such  a  letter, — if  such  a  letter  exists, — why 
does  he  not  produce  it?  And  this  leads  to  the  ques 
tion,  Why  is  not  General  Warfield  called  as  a  wit 
ness?  If  the  plaintiff's  conduct  at  the  Hotel  Rafael 
during  his  management  there  was  such  as  to  give 
no  scandal  to  the  guests;  if  his  behavior  was  cour 
teous  and  respectful  to  ladies,  no  one  better  knew 
it  than  the  General.  Why,  then,  is  he  not  called? 

The  learned  counsel  retorts  by  asking  why  we  did 
not  call  him.  That  question,  I  respectfully  submit, 
it  is  not  difficult  to  answer.  What  need  had  we  of 
his  testimony?  What  controverted  fact  could  he 
have  helped  us  to  establish?  He  might,  it  is  true, 
have  corroborated  Mr.  Leake  and  Mr.  Raymond  as 
to  the  interview  at  the  California  Hotel.  But  the 
testimony  of  these  gentlemen  is  not  impugned.  He 
might  also  have  corroborated  Mr.  Perkins  as  to  the 
interview  at  the  Hotel  Rafael.  But  Mr.  Perkins's 
statements  are  not  questioned.  Why,  then,  corro 
borate,  when  the  learned  counsel  admits? 

Another  significant  circumstance  is,  that  while 
this  is  a  suit  to  recover  damages  for  an  injured 

48 


VON   SCHROEDER   vs.    SPRECKELS 

reputation,  and  while  the  plaintiff  has  set  upon  that 
reputation  the  high  value  of  a  quarter  of  a  million, 
he  has  not  called  a  single  witness  to  prove  that  he 
had  a  reputation  to  lose.  From  the  broad  circle  of 
acquaintances,  which,  by  virtue  of  his  position,  of 
his  wealth,  and  of  the  standing  of  the  family  into 
which  he  married,  he  must  have  made,  and  from 
the  number  of  associates  and  friends  among  whom 
he  spent  his  life,  you  would  naturally  expect  to  see 
some  one  come  forward  to  bear  witness  to  his  good 
reputation.  Yet  none  has  come.  No,  not  from  the 
inhabitants  of  San  Rafael,  among  whom  he  lives, 
and  with  whom  he  has  constant  dealings;  not  from 
the  fashionable  companions  with  whom  he  has  wined 
and  played  and  feasted;  not  from  the  families  into 
whose  homes  he  was  received  as  an  inmate,  does  a 
single  one  appear  to  rebut  the  implication  that,  as 
Mr.  Perkins  stated  to  Mr.  Leake,  his  reputation  in 
respect  to  women  was  bad — very  bad,  indeed. 

In  this  connection,  let  me  call  your  attention  to 
the  fact  that  the  plaintiff,  through  his  counsel, 
objected  to  our  proving  the  Palace  Hotel  incident 
of  the  loth  of  October,  in  which  he  was  involved. 
Would  a  man  of  spotless  reputation  have  availed 
himself  of  a  technical  right  to  exclude  that  testi 
mony  P  Does  an  honest  man,  offering  for  sale  what 
he  represents  to  be  gold,  object  to  the  purchaser's 
subjecting  the  metal  to  every  test  by  which  its  purity 
may  be  assailed?  Does  an  honest  man,  proposing 
to  sell  a  horse  as  sound,  refuse  the  purchaser's 

49 


ARGUMENT 

request  to  submit  the  animal  to  the  inspection  of  a 
surgeon?  Then,  why  did  the  plaintiff  lay  hold  on 
a  technicality  to  exclude  the  testimony  of  Acker- 
gren,  the  night-watchman,  called  by  us  to  prove  the 
episode  of  the  Palace  Hotel? 

And  now,  gentlemen,  if  those  things  which  have 
been  testified  to  by  witnesses  whose  veracity  is  not 
attacked  and  whose  testimony  is  not  contradicted  be 
true ;  if  those  things  which,  though  coming  from 
assailed  witnesses,  are  not  denied  be  true ;  if  those 
things  which,  by  irresistible  inference  and  unerring 
deduction,  are  drawn  from  conceded  facts  be  true, — 
then,  I  ask  you,  are  they  not  sufficient  to  establish 
the  substantial  correctness  of  the  statements  of  the 
article  in  question  ?  Do  they  not  prove  that  the 
conduct  of  the  plaintiff  at  the  Hotel  Rafael  was 
that  of  a  profligate  ?  And  if  they  do,  then,  in  con 
formity  with  the  legal  principles  to  which  I  have 
referred,  and  upon  which  the  Court  will  instruct 
you,  we  are  at  this  point  entitled  to  your  verdict. 

The  learned  counsel  has  vaguely  hinted  at  certain 
results  as  likely  to  follow  such  a  verdict.  Appeal 
ing  to  your  local  pride,  he  urges  that  the  ruin  of  the 
Hotel  Rafael,  and  consequent  loss  to  this  town, 
must  flow  from  such  a  determination  of  this  cause. 
I  do  not  believe,  gentlemen,  that  any  one  of  you 
has  any  apprehension  of  such  an  outcome.  No 
one,  I  am  confident,  doubts  that,  under  a  changed 
and  proper  management,  this  hotel  will  continue  to 
be  in  the  future,  what  it  has  been  in  the  past,  a 

50 


VON   SCHROEDER   vs.    SPRECKELS 

favored  spot  for  those  seeking  in  the  country  recre 
ation  and  rest  from  their  labors  in  the  city. 

But,  if  that  resort  is  to  be  conducted  in  the  future 
as  it  has  been  in  the  past,  if  the  plaintiff  is  still  to 
cast  over  it  the  shadow  of  his  presence,  then,  if  a 
verdict  in  favor  of  the  defendant  shall  have  the 
effect  of  barring  its  doors  against  a  single  reputable 
woman,  I  appeal  to  you  as  members  of  this  com 
munity,  as  husbands  of  honorable  wives,  as  fathers 
of  virtuous  daughters,  to  welcome  the  result.  Let 
the  consequences  apprehended  by  the  learned  coun 
sel  come.  Aye,  let  the  house  be  fired  by  the  torch 
of  the  incendiary,  until  naught  but  a  heap  of  smol 
dering  ashes  remains,  rather  than  that  girls  of  tender 
age  shall  continue  to  drag  their  vestal  robes  through 
the  slime  of  its  midnight  orgies,  until  overcome 
with  wine  they  faint,  surrendering  the  treasures  of 
their  purity,  into  the  arms  of  heartless  seducers. 
Let  the  tornado  with  its  whirling  arms  seize  upon 
the  structure  and  scatter  it  to  the  winds,  rather  than 
that  matrons  shall  continue  to  spend  their  nights  in 
its  gambling-rooms,  and,  amid  the  rank  odors  of 
tobacco  and  the  maddening  fumes  of  wine,  squander 
the  fortunes  of  their  absent  husbands.  Let  the 
spot  be  blotted  out  until  its  very  ruins  shall  have 
perished,  rather  than  continue  to  be  a  haunt  from 
which  the  young  bride,  her  lips  still  tremulous  with 
vows  pronounced  at  the  altar,  her  brow  still  bound 
with  the  blossoms  of  her  hymeneal  crown,  shall  be 
taken  out  at  midnight  to  adulterous  assignations, 

5* 


ARGUMENT 

and  brought  back  with  the  dawn  to  dishonor  with 
her  polluted  body  the  bed  of  the  unsuspecting 
bridegroom.  Aye,  let  it  perish,  and  this  commun 
ity  will  be  all  the  healthier,  all  the  stronger,  all  the 
better  for  it. 

But  why  ascribe  such  overweening  importance  to 
the  permanency  of  the  place  ?  Stately  and  graceful 
as  are  its  structures,  picturesque  its  gardens,  delight 
ful  its  arbors  and  its  groves,  what  are  they  in  com 
parison  with  the  surrounding  nature,  in  whose 
majestic  presence  they  dwindle  into  nothingness  ? 
The  plaintiff  may  have  it  in  his  power  to  destroy 
what  man  has  fashioned  into  artificial  beauty ;  but, 
even  thus,  the  hand  which  yearly  clothes  these  val 
leys  and  hillsides  with  verdure,  plants  the  stately 
redwood  and  broad-spreading  oak  upon  the  slopes 
and  ravines  of  yon  mountains,  and  weaves  at  morn 
the  misty  wreaths  that  encircle  the  brow  of  Tamal- 
pais  will  not  cease  to  lavish  its  gifts  around  you. 

Of  the  results  upon  the  plaintiff  of  an  adverse 
verdict  what  shall  be  said  ?  Of  his  condition  I 
would  speak  in  terms  of  moderation.  His  state  is, 
indeed,  one  which  must  excite  the  pity  of  every  gen 
erous  heart.  Young,  gifted,  a  nobleman  in  his  own 
country,  an  officer  of  distinction  in  a  gallant  army, 
he  came  among  us  to  wed  one  of  the  most  lovable 
of  our  daughters.  Confiding  in  his  manhood  and 
the  chivalry  which  his  rank  seemed  to  avouch,  she 
intrusted  into  his  hands  the  ample  fortune  which 
her  father  had  amassed.  How  has  he  repaid  her 

52 


VON    SCHROEDER   vs.    SPRECKELS 

confidence — how  requited  her  love  ?  Where  is  she 
now?  Where  the  children  with  whom  she  has 
blessed  his  home  ?  Exiled  from  the  land  where  she 
was  married,  exiled  from  the  land  where  they  were 
born,  exiled  from  the  land  where  the  life  of  her 
father  and  their  grandsire  had  been  spent  and  where 
his  ashes  are  buried !  Where  are  the  holiday 
friends  who  flocked  about  him  during  the  brief 
sunshine  of  his  factitious  prosperity?  In  this  his 
hour  of  supreme  trial,  do  we  see  them  gathering 
about  him  ?  Do  they  accompany  him  here  to  speak 
into  his  ear  the  language  of  confidence,  of  solace,  or 
of  hope  ?  No.  Armed  bullies  and  hired  ruffians 
may  follow  his  footsteps  as  a  guard  against  the 
vengeance  of  outraged  husbands,  brothers,  and 
fathers — friend  there  is  none  ! 

Unfortunate  man  !  Your  course  among  us  has 
been  strewn  with  wrecks.  Your  position  is  re 
deemed  neither  by  the  performance  of  great  public 
services,  nor  by  the  achievement  of  eminent  success 
in  any  walk  of  commerce,  industry,  or  learned  pro 
fession.  Hope  not,  therefore,  to  take  up  here  the 
broken  thread  of  your  life.  Hope  not  by  repent 
ance,  however  sincere,  by  amendment,  however  per 
severing,  to  carve  out  in  this  State  a  new  career. 
Return  to  your  own  country.  Return  to  that  land 
in  which  the  distant  waves  of  this  sea  of  scandal  may 
not  yet  have  undermined  your  standing.  Prostrate 
yourself  at  the  feet  of  that  wife  whom  you  have 
wronged.  Out  of  the  abundance  of  her  love  ask 

53 


ARGUMENT 

forgiveness.  Resume  the  place  in  that  great  army 
which  your  title  and  your  rank  confer.  Go  forth, 
if  you  may,  to  fight  the  battles  of  the  Fatherland. 
Go  forth  to  unfurl  the  imperial  standard,  and  extend 
to  the  uttermost  bounds  of  the  earth  the  sway  of 
Germany's  civilization  and  conquests.  Blot  out  by 
your  future  conduct  the  memory  of  your  past 
shortcomings.  By  your  own  deeds  win  back  a  new 
reputation.  Do  not  tarry  here,  vainly  awaiting 
what  cannot  be  accorded  you — a  verdict  against  the 
evidence  and  the  law.  The  province  of  the  jury  is 
justice.  Mercy  and  forgiveness  are  not  theirs  to 
grant.  At  the  hands  of  a  higher  power  must  these 
be  sought.  And,  perchance,  in  the  time  to  come, 
when  suffering  shall  have  purified  your  soul  and 
noble  deeds  shall  have  regenerated  your  life,  kneel 
ing,  your  children  and  grandchildren  about  you, 
beneath  the  dim-lit  arches  of  some  mediaeval  cathe 
dral,  as  the  white-robed  priest,  prostrate  before  the 
altar,  implores  God  to  remit  the  trespasses  of  man 
kind,  you,  too,  may  breathe  a  prayer,  invoking  the 
mercy  of  Him  who  told  the  erring  woman  to  go 
and  sin  no  more,  in  the  hope  that  "  he  who  loved 
like  Magdalen,  like  her  may  be  forgiven." 


54 


TO    A    TRIAL    COURT 


AMONG  the  many  notable  will-contests  which  have  been  tried  in 
California,  none,  perhaps,  has  a  more  remarkable  history  than  that 
in  which  the  following  argument  was  made.  The  testator,  George 
H.  Parker,  died  in  his  seventy-sixth  year,  in  the  county  of  Santa 
Clara,  leaving  an  estate  valued  at  over  a  quarter  of  a  million  dollars. 
He  had  made  a  will,  wherein,  after  minor  bequests,  he  devised  the 
whole  of  his  estate  to  trustees  in  trust  for  his  only  son,  Edward  L. 
Parker.  The  terms  of  the  trust  were,  in  substance,  that  the  trus 
tees  should  pay  over  to  the  son  during  his  lifetime  the  whole  income 
of  the  property,  and  in  case  his  wife  died  before  him,  then  at  once 
to  convey  and  transfer  the  property  to  him  outright ;  but  if  his  wife 
survived  him,  then  to  convey  the  property  to  third  persons.  The 
testator  died  on  the  I7th  day  of  August,  1893,  and  his  will  was 
probated  on  the  I4th  day  of  the  following  month.  His  son  sur 
vived  him  but  a  few  months,  dying  on  the  I4th  day  of  December 
of  the  same  year,  leaving  his  wife  as  his  only  heir.  The  latter  in 
due  time  instituted  proceedings  to  revoke  the  probate  of  the  will. 
The  contest  was  three  times  heard  before  a  jury.  The  first  trial 
lasted  from  the  191)1  day  of  May  to  the  1st  day  of  July,  1896, 
resulting  in  a  disagreement  of  the  jury ;  the  second  lasted  from  the 
1st  day  of  September  to  the  I  ith  day  of  November,  1896,  result 
ing  in  a  verdict  against  the  will  on  the  ground  of  unsoundness 
of  mind.  A  motion  for  new  trial  was  at  once  made  by  the 
respondents.  This  motion  was  granted  and  a  new  trial  ordered. 
The  case  was  heard  for  the  third  time,  the  trial  commencing  on 
May  3d  and  ending  on  August  5,  1898.  Again  the  jury  found 
against  the  will,  —  this  time  on  the  ground  of  undue  influence.  A 
motion  for  new  trial  was  again  made  by  the  respondents.  This 
motion  was  granted  on  November  13,  1899;  and  thereupon  the 
contest  was  abandoned. 

In  all  these  proceedings,  Mr.  Delmas  appeared  as  counsel  for 
the  respondents.  The  following  argument  was  made  by  him  in 
support  of  the  first  motion  for  new  trial,  in  the  Superior  Court  of 
Santa  Clara  County,  sitting  in  bane,  on  the  1 2th  and  1 9th  days 
of  February,  1897. 


CONTEST   OF   PARKER'S   WILL 

MAY  IT  PLEASE  THE  COURT  :  This,  as  your 
Honors  have  already  been  informed,  is  a  motion 
for  a  new  trial  of  an  issue  submitted  to  a  jury  in  a 
proceeding  to  revoke  the  probate  of  a  will.  The 
outline  of  the  proceedings  to  which  it  is  proper  to 
call  attention,  in  order  to  make  my  argument  in 
telligible,  may  be  given  as  follows:  — 

George  H.  Parker  died  in  this  county  in  March, 
1893.  A  ^ew  weeks  afterward,  his  will,  with  its 
two  codicils,  was  duly  admitted  to  probate.  Within 
a  year,  the  widow  of  his  only  son  and  heir  filed  a 
contest  of  the  probate,  on  three  grounds, — fraud, 
undue  influence,  and  unsoundness  of  mind.  Upon 
a  challenge  of  these  grounds  by  the  parties  inter 
ested  under  the  will,  the  issues  came  on  to  be  tried 
before  a  jury,  in  September  last.  At  the  close 
of  the  contestant's  case,  the  Court  withdrew  the 
consideration  of  the  issues  of  fraud  and  undue 
influence,  on  the  ground  that  there  was  no  evidence 
to  support  them.  Upon  the  only  remaining  issue 
the  jury  found  against  the  will.  In  due  time,  the 
respondents  filed  their  notice  of  intention  to  move, 

57 


ARGUMENT 

upon  the  minutes  of  the  Court,  for  a  new  trial,  on 
the  ground  of  insufficiency  of  evidence  to  justify 
the  verdict.  It  is  my  object  to  support  that  motion. 

I  take  leave  to  state  at  the  outset  that  while  the 
verdict,  when  rendered,  struck  me  with  astonish 
ment,  yet,  upon  calmer  reflection,  I  am  convinced 
that  the  result  of  the  trial  was  such  as  might  well 
have  been  anticipated.  It  was  not,  after  all,  con 
trary  to  our  experience  at  the  bar  that  a  woman  of 
no  uncomely  appearance,  who,  if  her  story  was  to 
be  believed,  had  for  twenty  years  been  the  loving, 
dutiful,  and  self-sacrificing  wife  of  the  only  son  of 
the  deceased,  and  who  in  widow's  weeds  besought, 
through  sobs  and  tears,  charity  for  the  errors  of 
her  earlier  life,  and,  by  the  lips  of  ingenious  and 
eloquent  counsel,  implored  her  judges  not  to  inflict 
upon  her  the  double  stigma  of  poverty  and  of 
shame, —  it  was  not,  I  say,  contrary  to  our  expe 
rience  that  such  a  one,  even  by  artifices  such  as 
these,  stale  and  threadbare  however  they  might 
appear  to  us,  should  play  upon  the  unsuspecting 
sympathies  of  twelve  ingenuous  men,  and  hurry 
them,  against  the  law  and  the  evidence,  to  an 
unconscious  violation  of  their  oaths.  Besides,  it 
might,  upon  broader  grounds,  have  occurred  to  the 
mind  that  jurors  habitually  deal  lightly  with  rights 
vested  under  wills,  and,  under  the  guise  of  justice 
to  the  living,  cloak  their  disregard  of  duty  to  the 
dead  and  disobedience  of  the  law. 

Indeed,  it  might  not  be  unprofitable  to  advert 

58 


CONTEST   OF   PARKER'S   WILL 

here  to  the  character  of  the  right  to  make  a  testa 
mentary  disposition  of  property,  the  attitude  of 
courts  toward  that  right,  the  habitual  disregard  of 
it  by  juries,  and  the  reasons  which  bring  about  that 
result.  Some  lesson  might  be  drawn  from  such 
considerations  helpful,  perhaps,  to  admeasure  the 
true  value  of  the  verdict  here  rendered. 

The  history  of  jurisprudence  teaches  that  the 
inception  of  the  right  of  testamentary  disposition 
is  coeval  with  that  of  property  itself,  and  that, 
springing  up  at  the  same  time,  together  they  have 
existed  and  developed  throughout  all  successive 
advances  of  civilization.  So  immemorial  is  its 
origin,  so  universal  its  recognition,  that  it  has  long 
since  been  looked  upon  as  incident  to  the  very 
conception  of  property  itself,  and  as  equally 
essential  to  its  enjoyment  as  the  right  of  gift  or 
other  free  alienation  during  life.  Contemplated 
from  the  standpoint  of  public  policy,  the  recogni 
tion  by  the  State  of  the  power  of  him  who  in  life 
was  deemed  the  best  judge  of  the  management  of 
his  property  to  dispose  of  it  according  to  his 
wishes  after  death  must  appear  founded  upon  the 
highest  wisdom.  It  is  recognized  as  an  efficient 
means  of  individual  self-protection;  and  in  the  juris 
prudence  of  all  civilized  countries  its  objects  are 
best  subserved  by  leaving  its  exercise  to  the  unfet 
tered  judgment  and  will  of  each  individual  owner. 

Such  being  its  nature  and  value,  it  would  appear 
at  first  blush  strange  that  the  popular  branch  of  our 

59 


ARGUMENT 

tribunals  should  be  the  one  which  can  ever  be  most 
successfully  called  upon  to  do  violence  to  the  exer 
cise  of  a  right  which  affects  each  member  of  that 
tribunal  equally  with  every  other  individual  in  the 
community.  Yet  the  fact  is  notorious  that  it  is  to 
jurors,  all  of  whom,  upon  their  voir  dire,  may  have 
sworn — all  of  whom,  upon  their  general  oath  to 
obey  the  instructions  of  the  Court,  have  certainly 
sworn — that  they  recognize  in  a  testator  the  right 
to  dispose  of  his  own  according  to  his  wishes, — it 
is  to  jurors,  I  say,  that  appeals  are  daily  made  with 
success  to  set  aside  the  wills  of  the  dead,  not  upon 
any  substantive  ground  recognized  by  law,  but 
because  their  provisions  may  not  conform  to  their 
own  particular  views  of  propriety  or  justice. 

This  tendency  has  been  the  subject  of  much 
judicial  comment  and  the  cause  of  strictures  made 
in  general  disparagement  of  the  jury  system.  I 
venture  to  think,  however,  that  these  animadver 
sions  may  not  be  wholly  deserved,  and  that  the 
verdicts  given  may  be  explained  upon  grounds 
which  in  no  wise  affect  the  integrity  of  jurors  nor 
warrant  any  general  attack  upon  the  value  of  the 
trial  by  jury.  The  experience  of  every  one  of  ex 
tended  practice  in  nisi  prius  courts  teaches  that  jurors 
are,  as  a  rule,  actuated  by  a  desire  to  do  right,  and 
that,  as  a  rule,  their  verdict  represents  the  conclusion 
which  commends  itself  to  their  sense  of  justice. 
This  observation  holds  good,  I  think,  even  in  cases 
of  wills.  Upon  a  view  of  all  the  circumstances  of 

60 


CONTEST    OF    PARKER'S    WILL 

the  case,  jurors  become  impressed  with  the  con 
viction  that,  from  their  standpoint,  a  will  is  just  or 
unjust,  and  their  verdict  voices  that  conviction.  In 
whatever  shape  the  result  of  their  deliberations  may 
be  announced,  it  represents  at  bottom  nothing  more 
than  the  conclusion  reached  upon  the  question  of 
the  fairness  or  unfairness  of  the  provisions  of  the 
will.  It  is  very  much  as  in  the  criminal  prosecu 
tion  of  a  man  who  has  slain  the  seducer  of  his 
wife  or  daughter,  where  a  verdict  of  acquittal  or 
conviction  on  the  plea  of  emotional  insanity  is  in 
reality  nothing  more  than  an  expression  of  the  jury's 
approval  or  disapproval  of  the  homicide. 

The  difficulty  is  that,  in  the  case  of  wills,  the 
jurors'  sense  of  justice  affords  no  guide  for  deter 
mining  whether  the  will  should,  in  law  or  in  morals, 
be  annulled.  The  reasons  for  this  are  obvious.  In 
the  first  place,  the  jury  never  can  have  fully  revealed 
to  them  all  the  elements  of  fact  which  operated 
upon  the  testator's  mind  in  determining  the  disposi 
tion  of  his  property ;  and,  in  the  next,  if  competent 
to  make  it,  the  testator  is  by  law  constituted  the 
sole  judge  of  the  justness  of  his  will.  Speaking  of 
the  disposition  of  property,  the  Supreme  Court  of 
Missouri  said: — 

"  It  was  for  the  testator  to  say,  from  his  own 
standpoint, — where  no  one  else  could  stand, — know 
ing  what  he  knew,  and  feeling  what  he  felt  .  .  . 
how  it  should  be  given."  * 

*  Maddox  vs.  Maddox,  21  S.  W.  502. 
61 


ARGUMENT 

Says  our  own  Supreme  Court: — 

"  It  is  well  to  remember  that  one  has  a  right  to 
make  an  unjust  will,  an  unreasonable  will,  or  even 
a  cruel  will.  Generally,  such  questions  turn  our 
thoughts,  as  they  are  often  intended  to,  from  the 
only  question  at  issue,  which  always  is  only,  Is  the 
will  the  spontaneous  act  of  a  competent  testator? 
Of  course,  juries  lean  against  wills  which  to  them 
seem  unequal  or  unjust.  But  the  right  to  dispose  of 
one's  property  by  will  is  most  solemnly  assured  by 
law,  and  is  a  most  valuable  incident  to  ownership, 
and  does  not  depend  upon  its  judicious  use.  The 
beneficiaries  of  a  will  are  as  much  entitled  to  pro 
tection  as  any  other  property-owners,  and  courts 
abdicate  their  functions  when  they  permit  the  preju 
dices  of  a  jury  to  set  aside  a  will  merely  upon 
suspicion,  or  because  it  does  not  conform  to  their 
ideas  of  what  was  just  and  proper."  * 

The  same  Court,  in  re  Spencer,  said: — 
"  Even  if  we  could  consider  the  will  as  unjust,  it 
would  make  no  difference.  In  disposing  of  her 
property  she  [the  testatrix]  was  not  called  upon  to 
consult  the  wishes  or  views  of  juries  or  courts;  her 
own  will  was  supreme."  f 

And  in  the  still  later  case  of  Langford  it  was 
said : — 

"  As  the  law  now  stands,  that  right  cannot  be 
frittered  away  after  the  death  of  the  testator,  accord 
ing  to  the  tastes  and  notions  of  others.  It  is  quite 

*  In  re  McDevitt,  95  Cal.   33.         t  96  Id.  453. 
62 


CONTEST   OF   PARKER'S   WILL 

likely  that  in  the  case  at  bar  the  provisions  of  the 
will  did  not  meet  with  the  approval  of  the  jurors; 
but  their  approval  was  not  necessary."  * 

In  the  practical  administration  of  justice,  the 
result  of  these  observations,  if  they  are  correct, 
would  be  to  warrant  not  a  general  carping  at  the 
jury  system,  but  the  exercise  of  the  undoubted 
powers  of  the  court  to  scrutinize  verdicts,  and  to 
correct  them  whenever  it  is  manifest  that  they  have 
been  arrived  at  under  a  mistaken  conception  of 
duty. 

In  the  proceedings  now  before  us,  whatever  justi 
fication,  from  the  standpoint  of  their  ideas  of  justice, 
the  jury  might  have  fancied  they  had  for  disapprov 
ing  of  the  provisions  of  the  will,  I  contend,  and 
shall  endeavor  to  show,  that,  according  to  the  rules 
of  law  and  the  evidence,  they  had  none  for  finding 
the  testator  of  unsound  mind. 

The  issue  of  unsoundness  of  mind  was  presented 
to  the  jury  under  the  aspect  both  of  partial  insanity, 
born  of  specific  delusions,  and  of  general  unsound- 
ness,  resulting  from  imbecility  or  dementia.  These 
I  purpose  separately  to  examine. 

Can  the  verdict  be  supported  upon  the  ground  of 
partial  insanity  consisting  of  insane  delusions?  This 
was  the  ground  insisted  on  in  the  argument  on 
behalf  of  the  contestant  to  the  jury.  It  was  the 
ground  presented  in  the  instructions  of  the  Court, 
given  at  contestant's  request,  upon  which  the  verdict 

*  108  Cal.  626. 
63 


ARGUMENT 

was  based.  Indeed,  while  the  evidence  relating  to 
general  unsoundness,  consisting  of  the  opinions  of 
intimate  acquaintances,  was  relied  on  to  avoid  a 
nonsuit,  and  doubtless  will  be  here  again  relied  on 
to  support  the  verdict,  partial  insanity  or  delusion 
formed  the  only  theme  of  the  argument  of  counsel 
and  the  instructions  of  the  Court.  I  will  now, 
therefore,  proceed  first  to  consider  it. 

Many  definitions  of  delusion  will  be  found  in 
the  books.  As  it  is  not  my  object  to  include 
within  any  of  them  the  facts  of  this  case,  but,  on 
the  contrary,  to  exclude  them,  it  will  not  be  neces 
sary  for  me  to  read  or  comment  upon  these  general 
definitions.  It  will  suffice  to  state  the  rule  by 
which  a  certain  mental  condition  may  be  shown  not 
to  be  a  delusion,  and  to  demonstrate  that  the  facts 
of  this  case  are  covered  by  that  rule. 

Whatever  other  elements  a  belief  may  possess,  it 
is,  according  to  all  the  authorities,  not  a  delusion  if 
it  is  found  to  have  the  following  characteristics: 
First,  if  the  thing  believed  is  true;  secondly,  if  the 
belief,  though  untrue  in  fact,  is  based  upon  evi 
dence,  however  slight,  from  which,  by  the  use  of 
the  reasoning  faculties,  however  illogical  the  process, 
the  conclusion  adopted  has  been  drawn. 

As  to  the  first  characteristic,  it  can  hardly  be 
necessary  to  devote  much  time  to  it;  for  it  is 
obvious  that  to  believe  the  truth  can  never  be  a 
delusion,  the  very  essence  of  which  is  that  it  is 
a  false  belief.  "Delusion/'  says  the  Court  of 

64 


CONTEST   OF   PARKER'S   WILL 

Appeals  of  New  York,  "is  insanity  where  one  per 
sistently  believes  supposed  facts  which  have  no  real 
existence  except  in  his  perverted  imagination."* 
"All  the  authorities  to  which  I  have  had  access," 
says  Judge  Redfield,  "agree  that  to  constitute  a 
delusion  there  must  be  a  belief  in  the  existence  as  a 
fact  of  something  which  does  not  exist."  •)• 

As  to  the  second  characteristic:  "A  belief/'  says 
Judge  Redfield,  "based  upon  evidence,  however 
slight,  is  not  delusion,  which  rests  on  no  evidence, 
but  upon  mere  surmise."  J 

In  TitteFs  Estate,  a  most  accomplished  probate 
judge  thus  charged  the  jury: — 

"Belief  based  upon  evidence,  however  slight,  is 
not  delusion.  One  person  from  extreme  caution,  or 
from  a  naturally  doubtful  frame  of  mind,  will 
require  proof  before  acting,  amounting,  perhaps,  to 
demonstration  ;  while  another,  of  different  faculties, 
but  of  equally  sound  mind,  will  act  upon  very  slight 
evidence.  ...  If  she  [the  testatrix]  believed,  .  .  . 
and  any  fact  existed  as  a  foundation  for  that  belief, 
she  was  not  laboring  under  delusion,  and  the  script 
is  her  will,  however  much  she  might  have  been  mis 
taken  in  the  couclusions  at  which  she  arrived.  .  .  . 
A  person  may  act  upon  weak  testimony,  yet  be 
under  no  delusion."  § 

*  In  re  White's  Will,  121  N.  Y.  406. 

t  i  Wills,  p.  86. 

t  i  Id.,  ibid. 

$  Myrick  Rep.,  p.  14. 

65 


ARGUMENT 

Says  the  Supreme  Court  of  Oregon: — 
"Delusion   is    that  which    springs    spontaneously 

into  the  mind  in  absolute  independence  of  process 

of  reasoning."  * 

Upon  the  trial,  Parker  was  charged  with  having 
entertained  certain  specific  delusions.  It  was 
claimed  and  argued, — 

First,  that  he  entertained  an  insane  delusion  that 
Emma  L.  Parker,  his  son's  wife,  was  an  adven 
turess,  who  would  squander  her  husband's  money 
and  turn  him  out  of  doors; 

Secondly,  that  he  entertained  an  insane  delusion 
that  his  son  was  a  drunkard,  a  spendthrift,  and  was 
unworthy  of  his  bounty; 

Thirdly,  that  he  entertained  an  insane  delusion 
that  Emma  L.  Parker  was  supporting  a  man  who 
was  a  counterfeiter  and  a  gambler  and  a  roue,  and 
for  that  purpose  was  stealing  money  from  her  hus 
band's  store; 

Fourthly,  that  he  entertained  an  insane  prejudice 
respecting  his  son  and  his  son's  wife. 

If  these  be  examined  in  the  light  of  the  law  and 
the  evidence,  it  will  be  found  either  that  Parker  did 
not  entertain  the  belief  at  all,  or  if  he  did,  he  did 
so  under  circumstances  which  demonstrate  that  it 
was  not  the  spontaneous  product  of  a  perverted 
imagination  without  evidence  to  support  it.  In 
contending  that  every  element  necessary  to  consti- 

*  Smith  vs.  Smith,  25  Pac.  Rep.  18. 
66 


CONTEST   OF   PARKER'S    WILL 

tute  insane  delusion  is  wanting  in  the  alleged  beliefs 
of  Parker,  I  shall  try  to  show  that, — 

First,  his  belief  in  relation  to  Emma  L.  Parker 
was  not  only  based  upon  information  which  he 
possessed  in  regard  to  her,  but  was,  under  the 
circumstances  in  which  he  was  placed,  perfectly 
rational; 

Secondly,  his  belief  as  to  his  son's  improvidence 
and  drinking  was  based  upon  reliable  information 
communicated  to  him;  and  he  never  considered 
him  unworthy  of  his  bounty; 

Thirdly,  his  alleged  belief  as  to  Emma  L. 
Parker's  entertaining  a  man  is  not  shown  by  the 
evidence  to  have  been  harbored  by  him; 

Fourthly,  his  prejudice  against  his  son's  wife  was 
fully  justified  by  her  character  and  conduct.  And 
prejudice  against  his  son  he  had  none,  but  the 
tenderest  affection,  instead. 

Examine  in  the  first  place  the  alleged  delusion  of 
Parker  touching  the  character  of  his  son's  wife. 

It  is  charged  as  a  delusion  that  he  believed  that 
his  son  had  married  an  adventuress.  That  he 
entertained  such  a  belief  and  frequently  gave  expres 
sion  to  it  admits  of  no  doubt.  But  was  it  an  insane 
belief?  It  was  not,  if  it  was  true;  nor  if,  though 
not  true,  it  was  based  upon  information  received  by 
him,  from  which,  by  the  use  of  his  reasoning  facul 
ties,  he  reached  that  conclusion ;  nor,  a  fortiori,  if 
the  information  was  such  that  it  would  have  led  any 
rational  man  to  the  same  conclusion. 

67 


ARGUMENT 

It  is  not  necessary  for  the  purposes  of  this  argu 
ment  to  contend  that  Emma  L.  Parker  was,  in  point 
of  fact,  at  the  time  of  her  marriage  to  Edward  an 
adventuress.  It  will  suffice  if  I  shall  succeed  in 
proving  that  the  information  which  George  H. 
Parker  received  concerning  her  after  that  event 
was  sufficient  rationally  to  induce  him  to  believe 
that  she  was.  In  order  to  understand  the  opinion 
which  he  formed  of  her,  it  will  be  useful  to  take  a 
brief  retrospect  of  the  relations  he  bore  toward  his 
son. 

That  the  testator  loved  his  son  has  been  amply 
proven  by  the  testimony  of  the  contestant  herself. 
But,  regardless  of  what  she  says,  the  facts  abun 
dantly  attest  that  love.  In  1870 — himself  then  by 
no  means  a  rich  man — he  started  his  son  in  business, 
with  a  cash  capital  of  ten  thousand  dollars.  From 
that  on  until  his  death  he  made  him,  from  time  to 
time,  further  advances,  amounting  to  more  than  a 
like  sum.  When,  in  1874,  he  learned  of  what  the 
family  conceived  to  be  his  unfortunate  marriage,  he 
crossed  the  continent  in  order  to  investigate  the 
matter  and  give  him  the  benefit  of  his  paternal  guid 
ance  and  advice.  Though  himself  living  in  Cali 
fornia,  he  visited  him  in  Hartford  from  the  time  of 
his  marriage  until  his  death,  every  two  or  three 
years,  and  on  these  occasions  was  for  weeks  his 
constant  companion.  When,  in  1894,  he  learned 
of  his  sickness,  he,  though  at  the  time  past  seventy- 
six,  made  a  journey  of  twice  three  thousand  miles 

68 


CONTEST    OF   PARKER'S    WILL 

to  see  him.  Finding  him  stricken  down,  he  then 
furnished  him  all  the  funds  necessary  to  procure 
every  comfort,  and,  in  order  that  he  might  not  be 
harassed  with  business  cares,  met  and  canceled  his 
obligations  at  his  bankers.  Though  convinced 
that  by  his  unfortunate  marriage  he  had  ruined  his 
life,  he  continued  to  love  him  to  the  last. 

Nor  do  the  provisions  of  this  will  denote 
any  other  feeling  than  that  of  parental  solicitude. 
The  testator  had  no  wish  more  fondly  cherished 
than  that  of  giving  to  his  only  son  all  he  had  in  the 
world.  The  very  restrictions  which  he  placed  upon 
the  bequest  to  him  were  only  calculated,  in  view  of 
the  circumstances  surrounding  him,  to  make  the 
gift  effectual.  They  were  intended  not  to  prevent, 
but  to  secure,  the  enjoyment  of  the  gift.  After 
making  such  charitable  and  benevolent  legacies  as 
were  proper  for  a  man  of  his  condition,  he  devised 
the  whole  of  his  estate  to  his  son,  on  the  single 
condition  that  he  should  survive  his  wife.  During 
her  life  he  secured  to  him  the  whole  of  the  income 
of  his  property,  and  empowered  his  trustees,  if  that 
income  proved  insufficient  for  his  proper  mainte 
nance,  to  use  the  capital  itself.  The  reason  of 
these  restrictions  was  that,  first,  he  did  not  deem 
it  wise  to  give  his  son  the  property  absolutely  dur 
ing  his  wife's  lifetime,  because  she  was,  he  believed, 
a  woman  who  would  squander  it  and  leave  him  when 
poor;  and  secondly,  if  his  son,  having  the  property, 
should  die,  she  as  his  heir  would  inherit  it,  and  this, 

69 


ARGUMENT 

he  considered,  she  did  not  deserve,  and  he  by  no 
means  wished. 

That  these  views  were  adopted  after  mature 
deliberation,  and  were  adhered  to  with  unswerving 
tenacity,  is  shown  by  the  fact  that  they  were 
embodied  in  every  will  he  made.  His  hostility 
toward  the  wife  arose  from  the  fact  that  he  con 
sidered  her  an  adventuress  who  had  inveigled  his 
son  into  an  unfortunate  marriage,  and  had  thereby 
ruined  his  life;  that  she  was  a  woman  whose  past 
life  had  been  dishonored  by  misconduct,  and  whose 
present  career  was  guided  by  hypocrisy. 

It  is  claimed  that  these  opinions  of  the  testator 
were  insane  delusions.  In  order  to  understand 
whether  they  were  or  were  not,  a  brief  sketch  of 
the  character  of  the  m'an  who  entertained  them, 
of  the  training,  education,  and  business  career  of  his 
son,  and  of  the  circumstances  under  which  the  con 
testant  came  into  the  family  is  necessary. 

The  testator  was  born  in  Connecticut.  In  early 
life  he  was  an  artisan,  working  as  a  clockmaker  in 
Hartford,  side  by  side  with  Noah  Pomeroy.  The 
acquaintance  led  to  a  marriage  between  Noah  and 
his  sister  Jane.  He  himself  married  in  1841,  and 
had  as  issue  one  only  child,  who  was  named  Ed 
ward  L.  Parker.  His  wife  dying  in  1851,  he  and 
his  son  became  for  five  years  members  of  Noah 
Pomeroy's  household.  At  the  end  of  that  period, 
he  remarried,  taking  as  wife  Noah's  niece,  Delia 
Pomeroy.  The  couple  came  to  California  in  1858, 

70 


CONTEST    OF   PARKER'S   WILL 

leaving  Edward  in  Jane's  charge.  After  engaging 
in  farming  here  for  about  two  years,  he  returned 
East  in  1860.  In  1865,  he  came  back  to  California, 
again  leaving  Edward  with  his  sister  Jane. 

From  that  time  on  Edward  became  a  member  of 
Noah's  family,  being  treated  as  the  adopted  son 
of  the  childless  couple.  They  sent  him  to  school 
and  to  the  best  business  colleges.  When  his  educa 
tion  was  completed,  they  secured  him  a  position  as 
a  clerk,  in  which  he  remained  until  1870.  He  then 
came  to  California  to  visit  his  father,  returning  with 
him  the  same  year.  His  father  then  set  him  up  in 
business  in  Hartford,  furnishing  him  a  capital  of 
ten  thousand  dollars.  Though  now  in  an  indepen 
dent  position,  Edward  still  made  his  home  with  his 
aunt  Jane.  The  Pomeroys  being  very  wealthy,  and 
the  young  man,  as  their  presumptive  heir,  moving 
amid  luxurious  surroundings,  became  somewhat  fast, 
a  member  of  clubs,  a  frequenter  of  the  race-track, 
having,  while  his  home  was  still  with  his  uncle  and 
aunt,  sleeping  apartments  down-town,  in  a  building 
of  questionable  character.  Such  was  the  condition 
of  Edward  Parker  in  1873,  when  he  first  met  the 
woman  who  was  destined  to  be  his  wife. 

Who  at  that  time  was  the  contestant?  Of  her 
past  life  and  history,  beyond  the  fact  that  she  was 
born  in  1851,  that  her  maiden  name  was  Emma 
Huff,  she  herself,  though  repeatedly  questioned,  has 
steadfastly  declined  to  speak.  She  would  appear 
before  us  in  the  attitude  of  a  respectable  woman,  yet 

71 


ARGUMENT 

her  antecedents  she  herself  keeps  under  veil.  Called 
upon  to  believe  the  diamond  of  the  purest  water, 
we  must  not  be  allowed  to  subject  it  to  any  test. 
Assured  that  the  fabric  is  of  the  finest  texture,  we 
must  purchase  it  upon  trust,  and  will  not  be  per 
mitted  to  examine  it  or  touch. 

This  much,  however,  we  have  succeeded  in  prov 
ing:  In  1870,  she  was  living  somewhere  in  New 
York, — where  cannot  be  ascertained  from  her.  She 
was  the  companion  of  a  Mrs.  Lowe,  who  in  early 
days  had  left  home  to  come  to  California  under  a 
false  name,  passing  herself  off  as  a  married  woman, 
and  had  then  returned  to  New  York,  there  to  follow 
such  vocation  as  beseems  such  a  character.  Emma 
Huff  herself  came  to  this  State  in  1869  or  1870, 
being  then  in  her  eighteenth  or  nineteenth  year. 
Before  starting  she  wrote  to  her  mother  that  she  was 
married  to  a  man  named  George  L.  Brown.  She 
came  alone,  taking  lodgings  somewhere  in  San 
Francisco, — where  she  cannot  be  persuaded  to  tell. 
She  then  met  a  man  named  Tillinghast, — a  club 
man  and  high  liver, — and  frequented  with  him,  and 
in  company  with  other  men  and  women,  restaurants 
whose  name  and  location  she  now  finds  it  con 
venient  to  forget.  What  her  relations  with  this  man 
were  may  be  vaguely  gathered  from  the  fact  that, 
though  not  married,  she  brought  back  to  her  home 
his  photograph  and  represented  him  to  her  family 
and  to  the  world  as  her  husband.  San  Francisco 
appearing  too  dull  to  her  enterprising  spirit,  she 

72 


CONTEST   OF   PARKER'S   WILL 

went  to  Virginia  City.  Of  her  life  there  we  know 
absolutely  nothing.  She  declines  to  be  interrogated 
upon  it.  What  it  had  been  we  may  conjecture  from 
the  fact  that  in  1874 — after  her  marriage  with 
Edward — a  man  named  Mitchell,  who  had  been 
with  her  a  resident  of  that  city,  came  to  visit  her  in 
her  home  in  the  Pomeroy  mansion  in  Hartford ;  that 
she  introduced  him  to  the  family,  falsely  represent 
ing  him  as  her  agent,  engaged  by  her  to  settle  up 
her  dead  husband's  estate;  and  that  he  was  over 
heard,  in  a  confidential  conversation  with  her,  to 
say,  "  Now,  Emma,  that  you  have  married  into  a 
good  family,  behave  yourself."  In  1871  or  1872, 
she  returned  to  her  home  in  Plantsville,  in  deep 
mourning — mourning  for  the  dead  husband  whose 
photograph  she  carried  and  whose  name  she  had 
given  as  George  L.  Brown. 

In  1873,  in  the  beginning  of  the  winter,  Edward 
L.  Parker  first  met  her.  The  meeting  was  charac 
teristic,  and  a  foreboding  of  the  events  which  were 
to  follow.  She  came  to  Hartford  in  company  with 
a  woman  whom  she  herself  has  represented  as  of  no 
reputable  character.  According  to  her  story,  while 
she  and  this  woman  were  at  the  hotel  called  the 
Allyn  House,  Edward  and  a  friend  named  Stanton, 
total  strangers,  called  upon  them,  introducing 
themselves,  and  at  once  invited  the  couple  to  a  ride 
and  supper  in  the  country.  They  went.  Upon 
their  return,  she  visited  Edward's  down-town  sleep 
ing  apartments,  leaving  there  some  time  in  the 

73 

F 


ARGUMENT 

night.  Her  companion  was  then  a  widow,  and  she 
represented  herself  as  such.  From  that  time  on, 
she  had  frequent  meetings  with  Edward  at  his 
apartments,  but  never  at  his  home.  Their  court 
ship,  if  courtship  it  may  be  called,  lasted  eight 
months,  during  which  she  never  was  introduced  by 
him  into  the  Pomeroy  family,  nor  he  by  her  into 
her  own.  He  was  brought  at  last  to  the  point  of 
consenting  to  marry  her, —  by  what  means  the 
evidence  does  not  leave  in  doubt.  She  repre 
sented  herself  to  him  as  a  widow  from  California, — 
relict  of  George  L.  Brown, — rich,  and  on  the  point 
of  returning.  He  believed  her  story.  About  a 
fortnight  before  the  marriage,  he  advised  his  uncle 
Noah  and  aunt  Jane,  telling  them  that  his  marriage 
must  take  place  inside  of  two  weeks;  that  he  was 
to  marry  the  widow  of  George  L.  Brown,  of  San 
Francisco,  who  had  died  in  the  Occidental  Hotel, 
in  that  city.  When  they  remonstrated  and  pointed 
out  to  him  that  he  was  in  no  condition  of  fortune 
to  marry,  he  replied  that  she  was  a  woman  of 
means,  had  property,  was  rich ;  that  he  must  marry 
her  right  away,  as  she  had  presently  to  go  back  to 
San  Francisco,  and  he  would  lose  her. 

The  marriage  took  place  in  New  York,  on  the 
a6th  of  June,  1873.  There  is  no  evidence — 
except  her  own  statement — that  any  of  her  family 
knew  of  it.  Certain  it  is  that  no  member  of  that 
family  was  present.  None  of  the  Pomeroys,  nor 
any  other  relative  of  Edward,  was  there.  George 

74 


CONTEST    OF   PARKER'S    WILL 

H.  Parker,  the  father,  was  never  even  apprised 
of  the  coming  event.  No  one  witnessed  their 
union,  except  Edward's  friend  Stanton,  who  had 
accompanied  him  on  his  first  visit  upon  her  in 
the  Allyn  House.  She  represented  herself  to 
the  minister  who  performed  the  ceremony  as  the 
widow  of  George  L.  Brown,  giving  her  residence 
as  San  Francisco,  and  certifying  that  she  was  now 
married  for  the  second  time.  Edward  believed  her 
to  be  such,  nor  was  he  undeceived  until,  as  I  shall 
presently  show,  some  eight  months  had  elapsed. 

The  very  day  of  their  marriage,  they  returned 
from  New  York  to  Hartford,  going  to  the 
Pomeroys.  She  was  received  kindly  and  treated 
considerately  by  all  the  household.  This  she  her 
self  is  compelled  to  admit.  She  played  the  widow's 
part  with  a  skill  worthy  of  her  former  career  in  San 
Francisco  and  Virginia  City.  She  still  wore 
mourning  for  her  departed  husband,  George  L. 
Brown.  Around  her  neck  hung  a  locket  graven 
with  his  initials.  In  her  album  on  the  parlor  table 
was  his  photograph,  ostentatiously  exhibited  to  the 
servants  and  members  of  the  family.  She  told 
where  they  had  lived ;  spoke  of  their  sojourn  at 
the  Occidental  Hotel  in  San  Francisco.  She  expa 
tiated  upon  his  munificence.  She  impressed  them 
with  his  never- failing  kindness.  He  denied  her 
nothing,  she  said.  She  had  her  horses  and  car 
riages, — a  span  driven  to  the  door  every  morning 
for  her  special  use.  She  had  all  the  money  she 

75 


ARGUMENT 

desired — he  never  left  her  side  without  showering 
gold  into  her  lap.  She  intimated  that  they  had 
traveled  together  far  and  wide  in  foreign  lands. 
She  described  with  elaborate  minuteness  every 
detail  of  his  mournful  taking-off  at  the  Occidental. 
He  had  been  suddenly  taken  sick,  she  said ;  she 
had  run  to  the  druggist's  for  assistance ;  on  her 
return  she  had  found  the  poor  man  dead,  and  her 
self  left  alone  and  desolate.  To  make  the  narra 
tion  of  his  demise  still  more  circumstantial,  she 
pointed  to  a  pin  seen  in  the  scarf  of  his  photograph. 
She  stated  that,  when  he  was  suddenly  taken  ill, 
she  had  untied  his  neckwear  to  relieve  him,  and  had 
taken  off  his  scarf-pin  and  stuck  it  in  a  cushion  on 
a  bureau,  where  it  had  remained  until  his  brother 
had  taken  it  away. 

She  told  of  the  ample  fortune  her  dead  hus 
band  had  left  her.  She  had  lands  and  stocks,  she 
said.  She  gave  the  very  number  of  the  house  in 
which  their  home  was, — 411  Powell  Street,  in  San 
Francisco.  Nay,  more,  out  riding  one  day  in  Hart 
ford  with  Jane  Pomeroy,  she  pointed  out  a  house — 
that  of  a  Mr.  David  Mayer — as  very  much  resem 
bling  the  one  of  her  dead  husband.  So  deep,  how 
ever,  she  said,  had  been  her  grief  for  his  demise 
that  she  had  kept  the  house  closed — she  could  not 
bear  to  live  in  it  for  a  whole  year  after  his  death. 
She  added  that  she  had  an  agent  in  San  Francisco 
taking  charge  of  all  her  property,  collecting  her 
rents,  gathering  in  the  dividends  from  her  mines, 

76 


CONTEST    OF  PARKER'S    WILL 

and— no  doubt — scissoring  off  the  coupons  from 
her  bonds.  She  complained  of  the  expense,  saying 
it  cost  her  a  great  deal  for  a  man  to  take  care  of 
her  property,  and  pay  the  taxes  and  insurance.  She 
introduced  this  very  agent,  in  the  shape  of  Mitchell, 
to  the  Pomeroy  household. 

That  this  story  was  a  monstrous  falsehood  she 
now  admits,  and  her  counsel  are  forced  to  avow. 
The  deception  practiced  upon  the  unsuspecting 
household  of  the  Pomeroys  was  bound  in  the  end 
to  break  down.  It  did  break  down.  In  the  first 
place,  the  picture  she  attempted  was  overdrawn.  It 
seemed  to  these  practical  New  England  people 
strange  that  a  widow  of  but  twenty  years,  in  good 
health,  plump  and  sleek,  should  take  on  so  for  the 
death  of  an  aged  husband — a  man,  she  had  stated, 
old  enough  to  be  her  father — as  to  keep  his  house 
shut  up  for  a  year, —  especially  so  when  she,  still  in 
mourning,  had  contracted  a  new  alliance  with  a 
younger  man.  Then  it  struck  this  frugal  couple  as 
odd  that,  while  complaining  of  the  expense  of  an 
agent  to  take  care  of  her  property,  she  had  rejected 
their  suggestion  that  her  own  husband's  father 
should,  free  of  charge,  represent  her  interests  in 
San  Francisco.  It  appeared  to  them  astonishing 
that  she  should  prefer  to  go  on  continuing  to  pay 
commissions,  of  which  she  complained.  Besides, 
while  giving  herself  out  as  very  rich,  she  was  con 
stantly  importuning  her  husband  for  money  for 
dress. 

77 


ARGUMENT 

Then  people  began  to  drop  in  and  whisper. 
Rumors  reached  the  Pomeroys  that  she  was  not 
perhaps  of  altogether  too  good  a  character.  They 
began  to  grow  suspicious  and  to  make  inquiries. 
Jane  wrote  to  her  brother  George,  under  date  of 
January  15,  1874,  that  they  had  heard  that  she  was 
a  woman  of  no  character,  and  she  wished  that  he 
would  come  and  investigate  for  himself.  She  sent 
a  copy  of  the  photograph  which  the  contestant  had 
represented  to  be  that  of  her  deceased  husband, 
George  L.  Brown,  and  also  gave  the  number — 411 
Powell  Street — of  the  house  in  which  she  had  said 
she  and  her  husband  had  lived  in  San  Francisco. 
She  concluded  by  requesting  him  to  find  out  whether 
the  facts  so  represented  were  true. 

George's  wife,  Delia,  answered  by  letter  dated 
January  25,  1874,  in  which  she  replied  that,  upon 
seeing  the  picture,  the  photographer  who  had  taken 
it  stated  that  the  original  was  a  Mr.  Tillinghast, 
a  well-known  man  still  living;  and  that  further 
investigation  showed  that  this  man  was  even  now 
carrying  on  the  business  of  an  importer  in  San 
Francisco.  As  regards  the  house  on  Powell  Street, 
it  was  ascertained  that  no  such  person  as  Brown  or 
the  contestant  had  ever  owned  or  lived  in  the  place. 

Noah  showed  this  letter  to  Edward,  and  told 
him  that  it  disclosed  the  facts  as  he  understood 
them.  When  Emma  came  home  that  night,  there 
was  a  stormy  interview  between  her  and  her  hus 
band.  She  stamped  the  floor  in  rage,  and  called 

78 


CONTEST    OF   PARKER'S   WILL 

Jane  all  manner  of  vile  names,  threatening  even  her 
life.  Edward,  who  had  been  as  a  son  to  Jane, 
restrained  her,  telling  her  that  he  would  protect  his 
aunt,  and  would  not  hear  a  word  spoken  against 
her.  He  furthermore  informed  her  that  she  had 
deceived  him — deceived  him  terribly ;  that  she  was 
no  widow,  and  had  no  estate  and  no  property. 
She  retorted  that  she  had  told  the  truth,  and  that 
she  would  procure  the  certificate  of  her  marriage. 
He  replied  that  she  could  not.  "You  cannot  get 
the  certificate.  I  don't  think  you  can  get  the  cer 
tificate,"  he  said.  Noah  was  called  in,  and  in  her 
presence  Edward  said  to  him,  "  Uncle  Noah,  do 
you  believe  that  man  is  living  in  San  Francisco  now 
which  Emma  has  claimed  was  her  dead  husband, 
George  L.  Brown?"  and  Noah  replied,  "I  do." 
Emma  then  exclaimed,  "  I  will  call  on  my  God  to 
paralyze  me  here  and  now  if  that  is  n't  my  dead 
husband  in  California."  She  said  further  that  she 
would  show  her  certificate  within  four  hours.  And 
she  left  the  house,  saying  that  she  would  go  to 
New  Haven  that  very  night  and  procure  it. 
While  she  was  gone,  Edward  said,  "Emma  has 
gone  to  New  Haven  to  get  her  marriage  certifi 
cate,"  and  Jane  replied,  "  Do  you  think  that  she 
will  get  it?"  Edward  retorted,  "No;  because  I 
don't  think  that  she  was  ever  married.  She  has 
deceived  me.  I  don't  think  there  is  any  mar 
riage  certificate  to  get.  She  has  deceived  me 
about  her  property.  She  has  deceived  me  every 

79 


ARGUMENT 

way."  His  condition  is  best  described  in  the  sim 
ple  words  of  Jane,  who  says,  "The  man  was  about 
crazy." 

She  returned  the  next  morning — or,  at  least, 
pretended  to  return — from  New  Haven,  saying 
that  the  minister  who  had  married  them  was  dead. 
She  asked  for  time  to  get  her  certificate  from  San 
Francisco, —  for  three  months, — saying  that  she 
had  a  copy  of  it  in  her  trunk  there.  She  added 
that  if  she  could  not  get  it  within  that  time,  she 
would  not  ask  her  husband  to  live  with  her  any 
longer,  and  would  leave  of  her  own  accord. 

This  transparent  falsehood  may  have  deceived 
her  husband.  He  may  have  believed  the  story. 
But  Noah  Pomeroy  had  too  much  knowledge  of 
the  world  to  be  hoodwinked  by  such  gauzy  stuff. 
He  ordered  the  couple  to  leave  his  house  that  very 
day,  stating  to  Edward  that  its  doors  would  always 
be  open  to  him,  but  that  the  woman  whom  he  had 
brought  there,  and  with  her  so  much  disgrace,  must 
never  darken  its  threshold  again. 

Shortly  after  this,  George  H.  Parker  came  East 
for  the  express  purpose  of  investigating  into  his 
son's  marriage  and  ascertaining  for  himself  the  true 
character  of  his  wife.  On  his  arrival  in  Hartford, 
he  stated  to  his  sister  Jane  that  he  had  made  in 
vestigations  in  San  Francisco  and  found  out  that 
there  was  no  such  person  there  as  George  L. 
Brown ;  furthermore,  that  he  did  not  think  his 
son's  wife  had  any  property  there  on  Powell  Street, 

So 


CONTEST    OF   PARKER'S   WILL 

or  anywhere  else,  nor  any  stocks  nor  bonds ;  that 
he  had  come  to  investigate  Edward's  wife,  to  satisfy 
himself  what  she  was ;  that  he  was  going  to  make 
his  investigations  personally. 

On  this  mission  he  stayed  in  Hartford  six  weeks. 
He  first  called  upon  his  son  and  his  wife  at  the 
United  States  Hotel,  where  they  were  stopping. 
He  found  her  at  £rst  pleasant  enough.  "He 
heard  her  story,"  says  Jane,  "and  came  back  home 
and  felt  as  if  the  woman  had  been  damnably 
abused.  He  was  going  down  the  next  day  to  see 
her  again."  On  his  return  the  next  day,  he 
offered,  if  she  would  make  a  true  statement  of  her 
previous  life,  to  take  her  and  her  husband  to  Cali 
fornia,  set  him  up  in  business,  and  wipe  out  the 
old  slate.  He  told  her  if  she  would  only  tell  him 
the  truth  of  her  past  history  he  would  stand  by  her, 
as  she  had  married  his  boy.  She  admitted,  with 
apparent  frankness,  that  "she  had  lied  to  Noah  and 
Jane,  but  would  tell  him  the  truth,"  and  then  told 
him  that  it  was  true  "that  she  had  married  a  man 
by  the  name  of  George  L.  Brown ;  that  he  lived  at 
the  Occidental  Hotel  in  San  Francisco,  and  that  he 
died  at  the  Occidental  Hotel."  She  gave  him  on 
a  slip  of  paper,  in  her  own  handwriting,  the  very 
number  of  the  room  and  the  date  of  his  death. 
She  added  "  that  he  was  buried  at  Lone  Mountain 
near  the  Broderick  monument."  She  requested 
him  to  write  to  California  himself  and  find  out  the 
truth.  He  wrote  accordingly,  and  informed  her 

81 


ARGUMENT 


of  the  fact  on  his  visit  the  next  morning.  She 
expressed  her  regret  that  he  had  not  telegraphed, 
instead  of  writing,  because,  she  said,  "  I  have  got 
to  wait  so  long  to  have  a  letter  go  and  come,  and  in 
this  suspense,  and  I  wish  you  had  telegraphed." 
She  further  told  him  that  she  had  property  in  San 
Francisco, —  a  house  at  411  Powell  Street, — and 
also  mining  stock.  He  wrote  to  his  wife  con 
cerning  these  matters,  and  she  answered  by  letter 
of  March  6,  1874,  in  which  she  stated  that  she  had 
gone  in  person  to  the  house,  411  Powell  Street, 
had  inquired  if  any  person  by  the  name  of  Brown 
had  lived  there  within  the  last  three  or  four  years, 
and  had  been  answered  by  the  lady  of  the  house 
that  she  had  resided  there  for  the  last  nine  years, 
and  that  no  person  by  the  name  of  Brown  had  ever 
lived  there  during  that  time. 

He  wrote  to  a  friend  in  San  Francisco,  to  ascer 
tain  whether  George  L.  Brown  had  ever  lived  or 
died  at  the  Occidental  Hotel,  and,  as  soon  as  his 
letter  reached  its  destination,  received  a  telegram  in 
the  following  words :  "  No  such  man  ever  lived  at 
the  Occidental  Hotel.  A  big  lie.  Letter  by  mail." 
After  receiving  this  telegram,  he  called  upon  his 
son's  wife  and  told  her,  "Here,  I  have  got  the  tele 
gram."  She  exclaimed,  "  Oh,  I  am  so  glad!"  He 
showed  her  the  telegram.  She  took  it,  read  it, 
tossed  it  off  in  a  chair  near  by,  and  said,  "What 
do  you  suppose  I  care  for  that?  I  never  told  you 
my  husband  died  at  the  Occidental  Hotel."  He 

82 


CONTEST    OF    PARKER'S   WILL 

said,  "  You  did."  She  replied,  "  If  you  say  that, 
you  are  a  damned  liar." 

In  due  course  of  mail  he  received  a  letter  from 
his  friend,  confirming  with  great  minuteness  of 
detail  the  former  communication  that  no  such  man 
as  George  L.  Brown  had  ever  lived  or  died  at  the 
Occidental  Hotel. 

This  letter  ended  his  investigation  into  the  char 
acter  of  his  son's  wife.  He  had  ascertained  enough 
to  convince  him  that  she  was  neither  a  truthful  nor 
a  worthy  woman.  To  use  his  own  forcible  language, 
he  had  "  found  out  that  she  was  a  liar,  and  he  did 
not  want  anything  more  to  do  with  her."  From 
that  time  on,  his  opinion  of  her  was  irrevocably 
fixed.  He  saw  clearly  that  she  had  absolutely 
dominated  his  son,  and  molded  him  to  her  will  as 
clay  in  the  potter's  hand.  He  retired  in  sorrow, 
telling  his  son  that  if  he  wanted  to  live  with  her  it 
was  his  privilege  to  do  so,  but  that  he  must  not  look 
to  him  for  support,  as  he  certainly  would  not  help 
support  her,  but  would  abandon  him  to  his  fate. 
Upon  his  return  to  California  he  wrote  him  to  that 
effect. 

As  early  as  that  time, — in  the  summer  of  1874, 
—  after  having  made  these  investigations  and  come 
to  these  conclusions,  he  told  his  son  that  "  if  he 
died  and  left  him  anything,  he  would  leave  it  in 
trust  to  him;  he  would  never  leave  it  where  his 
wife  would  get  one  dollar." 

The  facts  above  narrated,  however,  were  not  all 

83 


ARGUMENT 

the  facts  upon  which  Parker  based  his  opinion  of 
the  character  of  Edward's  wife.  The  most  conclu 
sive  evidence  of  the  son's  abasement  and  the  wife's 
pernicious  influence  over  him,  as  well  as  her  own 
depravity,  was  yet  to  come.  After  his  wife  had 
been  expelled  from  the  Pomeroy  mansion,  Edward 
wrote  to  his  father  that  his  aunt  Jane,  who  had  been, 
as  I  have  shown,  a  mother  to  him,  had  hired  low 
lived  men  to  go  to  "  his  home  and  put  filth  upon 
his  doorsteps,  to  insult  him  upon  the  street,  as  well 
as  to  go  to  his  house  to  do  it,  and  that  she  had 
reported  that  he  was  seen  drunk  in  public  on  the 
street,  and  that  they  were  both  rotten  with  disease, 
and  were  living  far  beyond  what  they  could  afford 
to."  This  letter,  though  in  Edward's  handwriting, 
was  the  creation  of  his  wife's  malice.  It  was  her 
plan  of  revenge  upon  her  husband's  benefactors. 
It  was  dictated  by  her.  When  Edward  awoke 
from  the  spell  which  his  wife  had  thrown  over  him, 
and  under  which  he  had  been  guilty  of  this  ingrati 
tude  and  baseness,  he  acknowledged  with  tears  that 
the  letter  was  false,  begged  pardon  for  writing  it, 
and  said,  "  Emma  dictated  the  letter  and  made  me 
write  it."  He  humbly  asked  that  the  letter  might 
be  given  back  to  him  to  be  burned  up.  In  his 
weakness,  however,  he  sought  to  palliate  his  wife's 
wrong  by  saying  that  her  motives  were  to  protect 
herself,  in  a  measure,  and  to  make  it  appear  to  his 
father  that  the  Pomeroys  were  to  blame, — to  dis 
credit  any  statement  that  Jane  and  Noah,  who  were 

84 


CONTEST    OF   PARKER'S    WILL 

then  about  to  go  to  California,  might  make  about 
her  and  her  husband. 

I  have  now  stated  the  facts  within  the  testator's 
knowledge  relating  to  the  character  of  his  son's  wife. 
If,  with  this  information,  he  reached  the  conclusion 
and  formed  the  belief  that  she  was  a  depraved  woman 
and  an  adventuress,  is  it  possible  that  any  Court 
can  justify  the  finding  of  a  jury  that  that  belief  was 
an  insane  delusion  —  a  figment  of  the  imagination, 
springing  spontaneously  from  a  diseased  mind,  with 
out  evidence  to  justify  it,  without  reason  to  support 
it? 

Examine  next  the  charge  that  the  testator  enter 
tained  an  insane  delusion  that  his  son  was  a  spend 
thrift  and  a  drunkard,  and  was  unworthy  of  his 
bounty. 

The  pernicious  effect  of  the  ill-fated  marriage  of 
Edward  with  Emma  Huff  did  not  stop  with  his 
moral  degradation.  Its  result  was  not  only  to  ruin 
the  fair  prospects  which  he  had  as  the  heir  pre 
sumptive  to  the  ample  fortune  of  the  Pomeroys,  but 
also  to  involve  him  in  financial  ruin. 

The  three  months  within  which  Edward's  wife 
had  promised  to  produce  her  marriage  certificate 
elapsed ;  but,  of  course,  she  did  not  produce  it. 
The  falsehood,  however,  had  given  her  time  to 
fasten,  or,  rather,  to  tighten,  the  bonds  by  which 
she  held  her  husband  in  servitude.  The  natural 
result  followed.  The  very  same  year — 1874 — 
he  asked  his  father  for  support,  and  begged  him  to 

85 


ARGUMENT 

become  the  indorser  of  his  paper.  Two  years  after 
his  marriage  he  was  not  only  insolvent,  but  was 
threatened  with  arrest  for  obtaining  goods  under  false 
pretenses.  He  was  then  owing  from  nine  to  ten 
thousand  dollars.  The  kind-hearted  and  forgiving 
Jane  came  to  his  assistance  with  thirty-five  hundred 
dollars,  and  the  no  less  kind-hearted  Noah  stepped 
in  and  paid  off  all  his  debts,  giving  him  for  six 
years  thereafter  the  benefit  of  his  own  large  credit, 
standing  behind  him  and  practically  assuming  charge 
of  his  business,  as  he  would  have  done  for  his  own 
son.  From  that  time  on,  he  was  a  frequent  appli 
cant  for,  and  the  recipient  of,  assistance  from  Noah, 
from  Jane,  and  from  his  own  father.  He  died  in 
1894,  twelve  years  after  Noah  took  off  his  helping 
and  sustaining  hand.  During  that  period  his  father 
had  furnished  him  ten  thousand  dollars  in  addition 
to  the  ten  thousand  dollars  capital  with  which  he 
had  originally  started  him.  When  he  died  he  was 
insolvent.  His  estate  paid  only  thirty-five  cents 
on  the  dollar.  His  finances  were  at  such  an  ebb 
that  his  father  was  compelled  to  furnish  money  for 
his  nursing  in  his  last  sickness,  and  to  save  his 
credit,  by  paying  off  a  note  of  one  thousand  dollars 
which  he  owed  at  the  bank. 

George  H.  Parker  knew  his  son  well.  If  he 
knew  his  good  qualities,  he  also  knew  his  weaknesses 
and  his  faults.  He  had  kept  up  his  intercourse  with 
him,  by  constant  visits  and  correspondence,  up  to 
the  very  day  of  his  death.  He  knew  the  thraldom 

86 


CONTEST    OF   PARKER'S   WILL 

under  which  he  was  to  his  wife.  He  was  acquainted 
with  his  habits  and  his  lack  of  thrift.  He  labored 
under  a  deep  conviction  that  his  wife  had  been  his 
ruin.  He  knew  that  she  had  been  the  means  of 
cutting  him  off  from  his  prospective  inheritance 
from  the  Pomeroys. 

If,  in  view  of  all  he  had  done  and  all  he  knew, 
he  believed  his  son  to  be  a  spendthrift,  his  conclu 
sion,  I  respectfully  submit,  was  both  rational  and 
sound. 

A  word  now  touching  the  subject  of  the  testator's 
belief  that  his  son  was  a  drunkard.  The  founda 
tion  of  that  belief,  if  it  existed  at  all,  is  given  in  the 
testimony  of  Mrs.  Law.  This  witness  was  asked 
to  state  a  conversation  that  took  place,  she  said, 
between  herself,  the  testator,  and  his  sister  Jane,  at 
the  Palace  Hotel  in  1888.  The  counsel  on  the 
other  side  said  that  their  object  was  to  prove  that 
Jane  instilled  into  the  testator's  mind  the  belief  that 
his  son  was  a  drunkard.  The  witness  then  stated 
that  Jane  had  said  to  her  brother  "  that  his  son  was 
all  bloated  up ;  that  he  was  going  to  ruin  ;  that  he 
would  n't  know  him, — and  it  was  all  on  account 
of  that  woman."  The  testator,  turning  to  the  wit 
ness,  had  exclaimed,  "  My  God,  Ellen,  see  what 
my  son  is  coming  to  !  "  It  is  claimed  that  from 
that  time  on  he  believed  his  son  was  addicted  to 
drink.  In  the  afternoon  of  October  yth,  Mr.  Rod- 
gers,  counsel  for  the  contestant,  stated :  "  George 
H.  Parker  believed  these  statements.  He  stated 

87 


ARGUMENT 

to  Mrs.  Dougherty  his  information  came  from 
Jane." 

Now,  assuming  all  this  to  be  true,  how  can  it  be 
claimed  that  the  testator's  belief,  if  he  entertained  it, 
was  an  insane  delusion?  The  testimony  shows  the 
most  brotherly  and  touching  relations  between  the 
testator  and  his  sister  Jane.  It  is  everywhere 
charged  by  the  contestant,  not  only  in  her  written 
grounds  of  contest,  but  here  in  open  court,  that  he 
had  implicit  confidence  in  her,  and  that  she  exer 
cised  great  influence  over  him.  How,  then,  can  it 
have  been  an  insane  delusion  for  this  confiding 
brother  to  believe  that  what  his  sister  told  him  was 
the  truth, — especially  so  when  her  statement  tended 
to  reflect  upon  his  son,  and  he  recalled  how  tenderly 
she  had  loved  him,  had  made,  and  was  still  making, 
her  home  his,  cherishing  him,  even  after  his  mar 
riage,  receiving  him  every  week  as  a  guest  at  her 
house?  How  can  it  have  been  an  insane  delusion 
for  him  to  believe  what  she  told  him,  when  she  was 
at  the  very  fountainhead  of  information  and  he 
three  thousand  miles  away? 

As  to  the  effect  which  the  testator's  knowledge 
of  his  son's  conduct  and  character  had  upon  the 
disposition  of  his  bounty,  there  are  certain  facts 
which  it  is  well  to  bear  in  mind.  He  was  a  New 
Englander  of  the  old  school.  That  he  felt  keenly 
the  disgrace  brought  about  by  his  son's  marriage 
and  conduct  we  know.  But  there  is  no  proof  that 
his  tenderness  for  his  son  in  any  manner  diminished. 

88 


CONTEST    OF   PARKER'S   WILL 

He  looked  upon  his  errors  more  in  sorrow  than  in 
anger.  He  contemplated  him  with  pity  rather  than 
indignation.  He  did  not  permit  what  he  knew  of 
him  to  smother  his  natural  affection,  nor  hinder  his 
desire  to  bequeath  him  all  he  had.  It  only  made 
him  solicitous  so  to  dispose  of  his  property  that  he 
might  be  safe  and  protected  in  its  enjoyment.  All 
this  is  made  manifest  by  the  testimony  of  the  con 
testant's  own  witnesses,  and  is  proved  by  his  own 
conduct  subsequent  to  the  information  he  received 
from  Jane. 

From  one  of  these  witnesses  we  learn  that  at  one 
time  he  appeared  very  much  excited  by  letters 
received  from  his  sister  Jane.  He  was  crying,  and 
said  that  his  only  child  was  a  disgrace  to  him.  That 
his  son  was  a  drunkard  and  going  to  the  dogs.  He 
added  that  his  son  was  a  man  any  one  ought  to  be 
proud  to  look  upon,  but  his  conduct  was  a  disgrace, 
and  he  might  as  well  have  no  child  as  to  have  a 
child  like  that.  He  did  not,  however,  blame  him. 
He  thought  it  was  his  wife's  influence.  On  a  great 
many  occasions  he  said  that  he  loved  his  son,  and 
the  only  thing  he  regretted  was  his  marriage  with  an 
adventuress.  He  "  said  his  son  was  his  heir,  and 
he  ought  to  leave  him  his  money,  but  he  was  afraid 
if  he  did  that  that  woman  he  was  married  to  would 
squander  it  and  then  turn  him  out  of  doors." 

When  he  learned  of  his  last  sickness,  he  went 
East,  as  soon  as  his  age  and  condition  would  per 
mit,  "  to  see  his  son  and  ascertain  if  he  and  his  wife 

89 


ARGUMENT 

were  well  cared  for ;  he  was  going  to  take  him  and 
his  wife  to  Cuba ;  he  had  money  enough  for  them 
all."  And,  as  stated  by  one  of  our  adversary's 
witnesses,  "  while  he  was  talking  the  tears  came  into 
his  eyes."  Though  a  very  old  man,  he  then  crossed 
the  continent  to  see  him.  He  furnished  him  money 
to  secure  the  best  possible  attendance.  He  took  up 
his  note  of  one  thousand  dollars  at  the  bank.  He 
left  three  hundred  dollars  with  his  clerk  upon  his 
departure.  He  attended  to  the  payment  of  the 
premium  on  his  life-insurance.  He  offered  to  pay 
the  rent  of  his  house.  He  went  out  riding  with 
him  every  day  during  his  visit  at  Cottage  City. 

The  claim  that  he  was  lacking  in  affection  toward 
his  son  is  best  refuted  by  the  contestant's  own  testi 
mony  relating  to  the  last  interview  he  had  with 
him.  When  informed  that  the  son  had  policies  of 
three  thousand  dollars  on  his  life,  the  father  said, 
"  We  will  see  that  your  policies  are  kept  up."  He 
then  added,  "  What  kind  of  a  home  have  you  got  ? 
I  want  you  to  keep  that  house  up.  Give  him  every 
thing  he  wants.  You  '11  be  provided  for.  I  want 
you  to  see  that  Ed  has  the  best  of  care  and  every 
thing  he  wants."  In  the  very  first  conversation  he 
had  with  his  son's  wife,  upon  his  arrival,  he  had 
said  to  her, cc  I  find  my  boy  a  very  sick  boy.  I  never 
expected  to  find  him  like  this  " ;  and  then,  at  part 
ing,  he  "  threw  his  arms  around  him  and  kissed 
him." 

In  view  of  all  this  testimony,  I  ask,  is  it  not 

90 


CONTEST   OF   PARKER'S   WILL 

preposterous  to  claim  that  George  H.  Parker's  be 
lief  that  his  son  was  a  drunkard  was  entertained 
without  any  evidence  to  support  it — a  creation  of  a 
diseased  imagination  ?  Upon  this  evidence  are  your 
Honors  prepared  to  sanction  the  conclusion  that 
the  testator  deemed  his  son  unworthy  of  his  bounty  ? 
In  the  face  of  these  facts,  are  you  ready  to  announce 
that  when  this  frugal  old  New  Englander,  who  had 
risen  by  his  own  unaided  exertions  from  poverty  to 
affluence,  saw  his  son,  in  spite  of  the  aid  he  had  got 
from  Noah  and  Jane,  and  from  himself,  within  the 
verge  of  the  criminal  law,  and  ending  in  ultimate 
bankruptcy,  it  was  an  insane  delusion — a  mental 
condition  having  no  evidence  to  justify  it,  the  dis 
ordered  offspring  of  a  diseased  imagination — to 
believe  that  that  son  was  a  spendthrift  ? 

The  third  delusion  charged  against  the  testator  is 
that  he  entertained  an  insane  belief  that  his  son's 
wife  was  supporting  a  man  who  was  a  counterfeiter, 
a  gambler,  and  a  roue  with  money  stolen  from  her 
husband's  store. 

The  whole  of  this  charge  is  based  upon  the  testi 
mony  of  the  contestant  alone.  She  testifies  that, 
in  one  of  the  interviews  which  the  testator  had  with 
her  in  1874  at  the  United  States  Hotel,  he  said, 
"  I  understand  you  are  supporting  a  man  who  is  a 
gambler  and  a  roue,  with  money  stolen  from  your 
husband's  store,"  and  that  Edward  then  replied, 
"  When  you  find  anything  of  that  kind,  you  can 
ask  me  to  leave  my  wife."  There  the  subject 

91 


ARGUMENT 

dropped,  never  was  again  alluded  to  by  the  testator 
nor  anybody  else  in  his  lifetime,  and  the  contestant 
and  her  father-in-law  went  out  that  morning  to  take 
a  ride  together. 

I  submit  that  to  set  aside  a  will  upon  the  ground 
that  this  single  statement  made  by  the  testator,  by  way 
of  inquiry  and  for  the  purpose  of  eliciting  informa 
tion,  more  than  twenty  years  before  he  made  his 
will,  constituted  an  insane  delusion  which  directly 
operated  upon  the  testamentary  disposition  of  his 
property  would  be  a  reproach  upon  the  administra 
tion  of  justice. 

It  is  said  lastly  that  the  testator  entertained  an 
insane  prejudice  against  his  son  and  his  son's  wife. 

As  to  any  prejudice  against  the  son,  I  have 
already  shown  that  the  whole  evidence  refutes  such 
a  claim.  It  cannot  upon  this  record  be  doubted 
that  the  father  was  deeply  attached  to  his  son, —  none 
the  less  so  for  that  he  deplored  the  misfortune  in 
which  his  marriage  had  involved  him.  As  to  the 
prejudice  against  the  son's  wife,  I  have  already 
endeavored  to  show  that  the  settled  and  deep- 
rooted  aversion  which  Parker  entertained  toward 
her,  far  from  being  insane,  was,  under  the  circum 
stances,  perfectly  natural  and  rational,  if  not  com 
mendable. 

Besides,  men's  wills  are  not  to  be  set  aside  be 
cause  of  their  likes  or  dislikes,  their  loves  or  hatreds, 
their  rational  inclinations  or  their  violent  prejudices. 
The  law  does  not  undertake  the  difficult  task  of 

92 


CONTEST    OF   PARKER'S    WILL 

tracing  back  to  their  source  the  feelings  of  the 
human  heart.  It  is  the  privilege  of  every  testator 
—  a  privilege  without  which  the  right  to  make  a 
will  would  be  valueless  —  to  reward  those  he  loves 
and  to  exclude  from  participation  in  his  bounty 
those  he  hates.  The  law  does  not  undertake  to 
deal  with  purely  moral  obligations.  It  may  be  more 
commendable  to  love  than  to  hate,  but  a  testator 
has  the  legal  right  to  entertain  and  act  upon  the 
one  feeling  as  much  as  the  other. 

Says  Mr.  Justice  McFarland,  speaking  for  the 
Supreme  Court  of  this  State: — 

"  The  likes  and  dislikes  of  human  beings  —  their 
confidences  and  mistrusts  —  are  often  capricious  and 
arbitrary;  but  they  are  not  evidences  of  insanity 
because  they  cannot  be  logically  defended  to  the 
satisfaction  of  those  who  think  them  wrong.  In  the 
case  at  bar  there  is  no  warrant  for  the  claim  that 
the  testatrix's  dislike  .  .  .  was  an  insane  delu 
sion;  it  was  simply  such  a  feeling,  arising  out  of  the 
recondite  principles  of  attraction  and  repulsion,  as  is 
quite  common  among  people  of  undoubted  sanity."* 

Said  the  same  Court,  speaking  through  Mr.  Jus 
tice  Temple,  in  an  earlier  case: — 

"It  is  quite  common  for  people  to  be  offended  at 
imaginary  injuries,  to  take  offense  when  none  was 
meant,  to  have  a  firm  belief  that  they  have  been  mis 
treated,  not  based  on  fact,  and  when  the  offending 
party  would  believe — for  generally  the  baselessness 

*  In  re  Spencer,  96  Cal.  452. 
93 


ARGUMENT 

of  the  belief  could  only  be  proved  by  them — that 
there  was  not  even  rational  ground  for  such  belief. 
.  People  may  hate  their  relations  for  bad 
reasons,  and  yet  not  be  deprived  of  testamentary 
power."  * 

The  claim  that  Parker  was  lacking  in  testamen 
tary  capacity  on  account  of  an  insane  prejudice 
against  his  son  or  his  son's  wife  is,  I  submit,  abso 
lutely  without  foundation. 

Upon  the  whole  case,  I  submit  that  a  verdict 
finding  the  testator  of  unsound  mind  by  reason  of 
the  alleged  delusions  mentioned,  has  manifestly  no 
evidence  to  support  it. 

Having  now  said  all  I  desire  to  say  upon  the 
subject  of  insane  delusions,  I  next  invite  your 
Honors'  consideration  of  the  other  contention  of  the 
contestant, — general  mental  unsoundness. 

In  the  first  place,  I  call  attention  to  the  testimony 
given  upon  this  subject  on  behalf  of  the  respondents. 
We  have  produced  twenty-five  witnesses  —  and  it 
must  be  apparent  we  could  have  produced  a  hundred 
more  —  who,  in  the  most  satisfactory  manner,  have 
testified  to  the  testator's  mental  soundness.  These 
witnesses  represent  all  classes  of  society.  They 
come  from  all  ranks,  professions,  and  occupations. 
They  are  lawyers,  physicians,  capitalists,  farmers, 
horticulturists,  merchants,  refined  and  accomplished 
women.  Among  them  are  his  intimate  acquaint- 

*  Estate  of  Carpenter,  94  Cal.  417-419. 
94 


CONTEST    OF   PARKER'S   WILL 

ances,  friends,  companions,  and  business  associates 
of  a  lifetime.  They  give  us  a  complete  picture  of 
his  life  for  a  period  of  over  fifty  years  —  from  1840 
to  his  death,  in  1893.  With  one  accord  they  speak 
of  hjm  not  only  as  a  man  of  perfect  mental  health, 
but  as  one  who  to  the  last  manifested  exceptional 
business  ability  and  intelligence. 

In  addition  to  this  showing,  there  are  not  a  few 
other  considerations  which  bear  upon  the  subject. 
In  examining  these,  and,  indeed,  the  whole  of  this 
part  of  the  case,  it  is  well  ever  to  bear  in  mind  that 
in  the  making  of  this  will  there  was  no  fraud,  no 
imposition,  no  undue  influence.  This  is  conclu 
sively  established  by  the  action  of  the  Court  in  with 
drawing  those  issues  from  the  jury,  on  the  ground 
that  there  was  no  evidence  whatever  to  support 
them.  We  have  here,  then,  a  testator  acting  in 
accordance  with  the  spontaneous  promptings  of  his 
own  mind,  carrying  out  in  his  own  way  the  purposes 
which,  without  suggestion  from  any  quarter,  he  had 
conceived.  If  we  add  to  this  the  circumstances 
attending  the  making  of  the  will,  we  shall  have 
before  us  a  group  of  facts  which,  according  to  all 
authorities,  is  entitled  to  the  greatest  weight  in 
determining  the  question  of  the  testator's  mental 
soundness. 

According  to  the  books,  and  in  consonance  with 
common  sense,  if  a  person  goes  of  his  own  accord 
to  the  office  of  a  man  of  law  of  his  own  selection, 
and  there,  alone  with  his  adviser,  gives,  without 

95 


ARGUMENT 

assistance  or  prompting,  intelligent  directions  for  the 
making  of  his  will,  indicating  the  manner  in  which 
he  desires  his  property  to  be  bestowed,  and  naming 
the  objects  of  his  bounty,  and  if,  in  addition,  the 
provisions  of  the  will  are  in  themselves  rational,  all 
these  circumstances  are  among  the  most  cogent  that 
can  be  adduced  as  proof  of  his  soundness  of  mind. 
It  appears  from  the  testimony  that,  in  1888  or 
1889, —  I  do  not  now  recall  which, —  Parker  had 
made  a  will  as  similar  in  every  substantial  respect 
with  the  one  now  in  controversy  as  the  circum 
stances  then  surrounding  him — his  wife  being  still 
alive — permitted.  This  will  had  been  drawn  by 
his  attorney,  Mr.  Charles  E.  Wilson,  of  San  Fran 
cisco.  After  his  wife's  death,  the  provision  as  to 
her  needing  alteration,  and  the  testator  being, 
besides,  desirous  of  bestowing  certain  legacies  upon 
relatives  and  friends,  he  went  to  the  office  of  Mr. 
Patton,  a  prominent  attorney  in  San  Jose,  and 
there,  alone  with  Mr.  Patton,  gave  the  requisite 
directions  for  his  new  will.  After  the  will  had 
been  drawn  according  to  these  instructions  and 
executed,  it  was,  upon  further  inspection  by  the 
testator,  found  deficient,  in  omitting  legacies 
amounting  to  twenty-five  thousand  dollars  to  the 
children  of  Marshall  Pomeroy.  It  was  accordingly 
returned  to  Mr.  Patton,  the  omission  pointed  out, 
and  a  new  will — the  one  now  before  us — was 
drafted  and  signed.  Subsequent  to  this,  Parker, 
being  desirous  of  adding  one  or  more  codicils,  went 

96 


CONTEST    OF   PARKER'S   WILL 

to  Mr.  Pattern's  office,  and  procured  the  requisite 
legal  formula  for  that  purpose.  He  used  it  later 
in  drafting  with  his  own  hand  the  two  codicils 
which  are  now  appended  to  his  will.  After  doing 
so,  he  submitted  the  instrument  with  these  codicils 
to  Mr.  Patton  for  revision  or  approbation.  Noth 
ing  being  found  that  needed  alteration,  the  docu 
ment  is  now  as  it  was  then  shown  him.  The 
testimony  of  Mr.  Patton  upon  these  subjects  is 
very  full,  explicit,  and  without  contradiction. 

Apart  from  the  testimony  of  Mr.  Patton,  that  in 
all  this  Parker  acted  in  a  manner  denoting  mental 
soundness,  the  circumstances  themselves  and  the 
provisions  of  the  will  show,  and  the  whole  trans 
action  evinces,  conduct  in  every  way  rational  and 
intelligent. 

There  are  two  other  facts  entitled  to  the  greatest 
consideration.  First,  that  for  several  years  after  it 
is  claimed  by  contestant  Parker  was  of  unsound 
mind  he  kept  a  regular  diary  of  his  daily  transac 
tions,  both  of  business  and  of  social  life;  and, 
secondly,  that  during  the  year  in  which  his  will  and 
codicils  were  drawn,  and  up  to  the  time  of  his 
death,  he  was  in  frequent  correspondence  with  his 
sister,  Jane  Pomeroy,  and  Mrs.  Husbands,  the 
lady  who  claims  to  have  been  engaged  to  marry 
him,  for  a  year  continuously  before  his  death.  It 
would  be  an  idle  consumption  of  time  to  read  the 
details  of  these  diaries  and  letters.  It  is  sufficient 
for  my  present  purpose  to  state,  and  the  Court 

97 


ARGUMENT 

will  find  that  nothing  in  them  can  be  discovered 
"sounding  in  folly."  On  the  contrary,  they  are 
all  emanations  of  an  intelligent  and  strong  mind. 

Finally,  I  desire  to  call  your  Honors'  attention 
to  a  fact,  which,  under  the  authorities,  is  quite 
conclusive  upon  this  subject.  There  is  no  contra 
diction  whatever  that,  up  to  the  last,  though  Parker 
was  over  seventy-six  when  he  died,  he  continued 
actively  engaged  in  business  and  managed  his 
affairs  with  prudence  and  sound  judgment. 

Such  being  the  showing  on  behalf  of  respondents, 
and  our  opponents  being  charged  with  the  heavy 
burden  that  rests  upon  those  who  rely  upon  insanity 
for  their  cause,  what  has  the  contestant  brought 
forward  to  overthrow  it  and  the  natural  presump 
tion  of  soundness  ? 

The  only  evidence  upon  which  a  motion  to  with 
draw  this  issue  from  the  jury  could  have  been 
resisted,  is  that  of  three  women, —  Mrs.  Dough 
erty,  Mrs.  Greenman,  and  Mrs.  Smith.  These  are 
not  new  names.  These  women  were  all  sworn  upon 
the  first  trial,  and,  to  the  best  of  their  ability,  then 
supported  the  case  of  the  contestant.  Though  her 
avowed  champions  then,  brought  here  to  prove 
the  testator  insane,  they  at  that  time  had  not  been 
able  to  persuade  themselves  to  testify  that,  in  their 
opinion,  he  was  of  unsound  mind.  Not  that  the 
contestant  did  not  on  that  trial  attempt  to  offer  the 
opinions  of  various  persons  as  to  the  condition  of 
his  mind,  for  that  attempt  was  repeatedly  made.  It 

98 


CONTEST   OF   PARKER'S   WILL 

failed  because  the  witnesses  could  not  show  the 
requisite  legal  qualifications  to  entitle  them  to  testify. 
But  these  three  women,  who  now  assert  that  they 
were  Parker's  intimate  acquaintances,  were  not  then 
asked,  nor  did  they  then  even  by  accident  state,  that, 
in  their  opinion,  he  was  of  unsound  mind.  This 
silence,  I  repeat,  can  be  accounted  for  only  upon 
the  assumption  that  at  that  time,  however  eager  to 
lend  support  to  contestant's  case,  they  could  not 
persuade  themselves  to  maintain  so  monstrous  a 
proposition.  They  have  testified  now,  however, 
and  their  testimony  being  before  us,  it  behooves 
us  to  proceed  to  examine  it.  * 

The  value  of  the  opinion  of  these  three  witnesses 
is  to  be  determined  by  the  value  of  the  reasons 
which  they  give  for  the  faith  that  is  in  them.  The 
Code  of  Civil  Procedure  allows  lay  witnesses  to 
testify  as  to  the  mental  capacity  of  others,  on 
condition  that  they  give  the  reasons  upon  which 
their  opinions  are  based.  "  Evidence  may  be  given," 
says  section  1870,  "of  the  opinion  of  an  intimate 
acquaintance  respecting  the  mental  sanity  of  a  per 
son,  the  reason  for  the  opinion  being  given." 

It  being,  then,  a  rule  of  law  as  well  as  of  com 
mon  sense,  that  in  investigations  of  this  kind  the 
opinion  of  no  witness  can  rise  higher  than  the  rea 
son  given  for  it,  if  the  reason  given  has  no  tendency 
to  show  insanity,  the  opinion  must  be  rejected  as 

*  Here  Mr.  Delmas  went  into  a  minute  examination  of  the  tes 
timony. 

99 


ARGUMENT 

valueless.  For  instance,  if  a  witness  should  testify 
generally  to  his  opinion  that  a  certain  person  was 
of  unsound  mind,  and  give  as  his  reason  the  fact 
that  that  person  believed  in  the  spiritual  communi 
cation  of  the  living  with  the  dead,  and  did  not 
believe  in  the  Christian  religion,  his  opinion  would 
have  no  legal  weight,  since  the  entertaining  of  such 
belief  or  disbelief  has  no  tendency  to  show  insanity. 
Said  the  Supreme  Court  of  Michigan,  in  a  case 
decided  in  1893  : — 

"  An  opinion  that  a  man  is  incompetent  must  be 
supported  by  some  evidence  that  is  inconsistent  with 
competency.  .  .  .  An  opinion  that  a  testator  was 
incompetent  can  only  be  given  when  the  witness 
has  testified  to  circumstances  upon  which  it  is  predi 
cated,  and  which  to  some  extent  justify  it."* 

The  same  Court,  in  a  subsequent  case,  said: — 

"  Where  the  testimony  of  the  witness  only  goes 
the  length  of  showing  acts  which  are  entirely  con 
sistent  with  sanity,  and  which  have  not  the  slightest 
tendency  to  show  insanity,  it  would  be  a  danger 
ous  rule  which  would  permit  his  opinion  to  be 
received."  f 

In  conclusion,  upon  the  general  proposition  that, 
where  the  reasons  given  by  the  witness  as  the  basis 
of  his  opinion  that  a  testator  was  of  unsound  mind 
are  frivolous,  or  such  as  afford  no  rational  warrant 

*  O'Connor  vs.  Madison,  57  N.  W.  Rep.  105,  107. 
t  Buys  vs.  Buys,  58  N.  W.  Rep.  331,  332. 


CONTEST    OF   PARKER'S    WILL 

for  reaching  that  conclusion,  the  opinion  is  worth 
less,  and  must  be  disregarded,  I  submit  to  your 
Honors  the  observation  of  the  Court  of  Appeals 
of  Maryland,  which  said: — 

"It  is  contended  by  the  learned  counsel  for  the 
appellees  that  ...  if  the  medical  expert  gives  the 
reasons  upon  which  his  opinion  is  founded,  and  they 
are  such  as  men  of  ordinary  knowledge  can  weigh,  and 
are  in  the  judgment  of  the  court  such  as  no  rational 
inference  can  be  deduced  therefrom  that  the  testator 
was  wanting  in  the  required  mental  capacity,  his 
opinion  does  not  afford  evidence  legally  sufficient  to 
show  such  want  of  capacity.  As  we  understand  this 
proposition  of  law,  we  are  not  prepared  to  dispute  it. 
Merely  because  a  witness  is  an  expert  does  not 
require  the  court  to  be  bound  by  his  opinion  if  it  is 
founded  on  such  reasons  as  are  clear  absurdities. 
If,  for  example,  a  physician  were  to  testify  that,  in 
his  opinion,  a  testator  was  not  of  sound  and  dispos 
ing  mind,  capable  of  executing  a  valid  deed  or  con 
tract,  and  would  in  his  further  examination  say  that 
the  only  reason  he  had  for  such  opinion  was  that  the 
testator  used  patent  medicines,  or  was  a  member  of 
some  religious  or  political  faith  other  than  his  own, 
such  opinion  would  be  based  on  a  foundation  so 
clearly  repugnant  to  right  reason  that  a  court  would 
not  hesitate  to  instruct  the  jury  that  it  was  not  suffi 
cient  to  support  a  verdict.  * 

Tested  by  this  rule,  it  must  be  apparent  that  the 
opinion  of  these,  the  witnesses  of  the  contestant 

*  Crockett  vs.  Davis,  31  Atl.  Rep.  701,  712. 
101 


ARGUMENT 

upon  the  issue  of  insanity,  is  valueless.  The  rea 
sons  they  give  have  no  tendency  to  show  insanity. 
The  utmost  that  is  claimed  for  them  is  that  they 
show  eccentricity.  But  this  is  not  sufficient  to  prove 
unsoundness  of  mind.  The  unwise  as  well  as  the 
wise,  the  ignorant  as  well  as  the  learned,  the  uncouth 
as  well  as  the  urbane,  the  eccentric  as  well  as  the 
perfectly  balanced  in  mind,  are  all  equally  entitled 
to  make  a  will.  Says  the  Supreme  Court  of  Dela 
ware  : — 

"  It  does  not  take  a  wise  man  to  make  a  will.  A 
man  must  be  possessed  of  sufficient  memory  to  know 
what  he  has.  He  has  a  right,  under  the  laws  under 
which  we  live,  to  dispose  of  his  property  just  as  he 
pleases.  It  matters  not  whether  he  gives  it  to  his  own 
relatives  or  to  somebody  else.  He  may  have  eccen 
tricities  and  peculiarities,  but  if  those  are  accom 
panied  at  the  same  time  with  a  sound  judgment, 
discretion,  and  reason,  he  has  a  perfect  right  to  do 
as  he  pleases  with  his  property."  * 

As  to  all  the  trifling  peculiarities  of  conduct  to 
which  these  three  witnesses  testify  as  a  basis  for  their 
opinion,  the  best  answer  that  can  be  given  is  found 
in  the  language  of  Chief  Justice  Cooley: — 

"  Now  that  it  has  become  so  common  to  assail,  on 
allegations  of  mental  disease,  the  wills  of  those  who 
in  life,  in  all  their  business  and  family  relations,  were 
treated  as  sane,  it  becomes  of  high  importance  that 
evidence  should  not  be  received  as  suggesting  insan- 

*  Ethridge  vs.  Bennett's  Ex'rs.,  31  Atl.  Rep.  813. 
102 


CONTEST    OF   PARKER'S    WILL 

ity  unless  it  has  some  legitimate  tendency  to  prove 
it.  We  are  persuaded  that  much  wrong  has  unwit 
tingly  been  done  in  many  cases  by  allowing  misfor 
tunes,  family  calamities  and  personal  peculiarities  to 
go  the  jury  as  having  some  necessary  tendency  to 
unsettle  the  mind,  and  therefore  some  bearing  on  the 
issue  of  mental  unsoundness.  As  disturbing  causes 
may  be  discovered  in  the  family  or  personal  history 
of  almost  every  living  person,  the  general  result  is 
that  occasion  is  found  for  contesting  the  validity 
of  almost  every  will,  especially  if  the  estate  is 
sufficient  to  tempt  the  endeavor.  Was  the  deced 
ent  afflicted  with  a  loathsome  disease?  Then 
this  presumably  affected  his  mental  health.  Were 
his  ambitious  hopes  disappointed?  Then  his  rea 
son  must  have  given  way.  Did  a  brother  have 
fits?  Then  there  must  have  been  insanity  in  some 
ancestor  which  has  tainted  the  brain  of  all  descend 
ants.  Has  the  only  son  gone  to  ruin?  Then  he 
must  have  inherited  mental  weakness  from  his 
father,  and  his  bad  conduct  has  probably  reacted 
upon  the  father  and  disturbed  his  reason.  Did  the 
deceased  have  ways  differing  from  most  men,  and 
rendering  him  eccentric?  Then,  surely,  as  most 
men  are  sane,  he  must  have  been  insane.  Has  he 
failed  to  remember  some  nurse  or  some  cousin  in 
the  distribution  of  his  bounty?  Then,  behold,  in 
ingratitude  and  want  of  family  affection,  the  plain 
indication  of  mental  disorder.  But  we  need  not 
pursue  the  list.  Give  free  admission  to  such 
evidence,  and  no  man  can  feel  assured  that  the  jury 
which  examines  his  will  in  the  light  of  his  family 

103 


ARGUMENT 

history  and  personal  peculiarities,  will  not  adjudge 
him  a  madman." 

But  it  is  not  alone  the  inherent  weakness  of  the 
testimony  of  these  three  witnesses  which  condemns 
it  and  demonstrates  the  hollowness  of  the  contest 
ant's  case.  To  this  inherent  weakness  must  be 
superadded  the  fact  that  a  large  number  of  other 
witnesses,  far  more  intimately  acquainted  with  the 
testator  and  infinitely  better  able  to  testify  truly  as 
to  his  mental  condition,  were  not,  though  at  hand, 
called  by  the  contestant.  Mr.  and  Mrs.  Law,  Mr. 
Sheldon,  Mrs.  Bickel,  and  Mrs.  Husbands  were  all 
witnesses  for  the  contestant.  They  were  called  and 
gave  testimony  in  her  behalf  upon  other  points. 
They  were  the  persons  nearest  and  closest  in  inti 
macy  to  the  testator.  Their  acquaintance  with  him 
ran  back,  in  some  instances,  more  than  a  quarter  of 
a  century.  In  all,  it  had  continued  unbroken  up 
to  the  time  of  his  death.  Mr.  and  Mrs.  Law  had 
been  his  friends  and  neighbors  since  1858.  Speak 
ing  of  them  in  his  argument  to  the  jury,  Mr. 
Coogan  called  them  "his  oldest  and  best  friends." 
Mr.  Sheldon  was  his  constant  companion  during 
the  last  eight  or  nine  years  of  his  life.  They  were 
accustomed  to  go  out  riding  together  almost  daily, 
discussing  the  whole  range  of  topics  of  ordinary 
personal  and  business  conversation.  Mrs.  Bickel 
was,  at  the  time  he  died,  and  had  been  for  a  long 

*  Fraser  vs.  Jennison,  42  Mich.  227—228. 
104 


CONTEST   OF  PARKER'S    WILL 

time  before,  his  housekeeper,  living  alone  with 
him  in  the  same  house.  Mrs.  Husbands  claims 
to  have  been  his  fiancee  during  the  year  preceding 
his  death, — at  all  events,  a  very  close  and  dear 
friend,  carrying  on  a  constant  correspondence  with 
him. 

Why  were  none  of  these  persons  thus  eminent 
ly  qualified  asked  whether,  in  their  opinion,  the 
testator  was  of  unsound  mind?  Their  silence 
and  the  failure  of  the  shrewd  and  ingenious  coun 
sel  for  the  contestant  to  interrogate  them  upon 
the  subject  is  broadly  significant.  This  silence, 
added  to  the  inherent  weakness  of  the  testimony 
of  the  witnesses  that  were  called,  is  sufficient  to 
destroy  the  whole  of  this  part  of  the  contestant's 
case. 

Where  a  party  having  at  hand  a  witness  pos 
sessed  of  full  knowledge  upon  the  subject  under 
discussion  purposely  refrains  from  calling  him,  and 
contents  himself  with  bringing  forward  a  weaker 
one,  the  presumption  is  that  if  the  former  had  been 
called  his  testimony  would  have  been  adverse. 

Under  the  provisions  of  the  Code  of  Civil  Pro 
cedure,  *  the  double  presumption  arises  "that  evi 
dence  willfully  suppressed  would  be  adverse  if 
produced,"  and  "higher  evidence  would  be  adverse, 
from  inferior  being  produced."  In  conformity 
with  this  rule,  the  Supreme  Court  of  New  York 
said,  in  a  case  where  a  party  failed  to  call  in  her 

*Sec.  1963. 
105 


ARGUMENT 

behalf  one  who  the   evidence  showed  must  have 
been  an  eye-witness  to  the  transaction: — 

"  There  was  also  in  this  case  a  circumstance  which 
was  entitled  to  some  weight  against  the  plaintiff. 
That  was  the  fact  that  the  plaintiff  had  it  apparently 
in  her  power  to  call  a  witness  who,  if  her  testimony 
was  true,  was,  besides  the  parties,  the  only  living 
eye-witness  of  the  transaction  upon  which  her  cause 
of  action  depended,  and  she  neglected  to  call 
him.  .  .  .  The  omission  to  call  that  witness,  or  to 
account  for  not  calling  him,  was,  as  the  record 
stands,  a  potent  circumstance  against  the  theory  of 
the  plaintiff's  case."  * 

The  remarks  of  Lord  Brougham  in  closing  his 
argument  in  the  House  of  Lords  in  defense  of 
Queen  Caroline  have  as  full  application  to  this  case 
as  to  that: — 

"Such,  then,  my  lords,  is  this  case.  And,  again, 
let  me  call  on  you,  even  at  the  risk  of  repetition, 
never  to  dismiss  for  a  moment  from  your  minds  the 
two  great  points  upon  which  I  rest  my  attack  upon 
the  evidence;  first,  that  the  accusers  have  not  proved 
the  facts  by  the  good  witnesses  who  were  within 
their  reach,  whom  they  had  no  shadow  of  pretext  for 
not  calling;  and,  secondly,  that  the  witnesses  whom 
they  have  ventured  to  call  are,  every  one  of  them, 
irreparably  damaged  in  their  credit." 

As  against  the  fantastic  testimony  of  the  three 
women  called  to  support  this  branch  of  the  con- 

*  Smith  vs.  Gunn,  12  N.  Y.  S.  808. 
106 


CONTEST   OF   PARKER'S   WILL 

testant's  case, — weak  in  itself,  and  doubly  weak  by 
reason  of  the  consideration  just  mentioned, — the 
respondents  can  safely  rely  upon  the  single  fact 
that  up  to  the  last  moment  of  life  the  testator  con 
tinued  in  the  active  and  intelligent  management  of 
a  varied  and  extended  business.  This  of  itself  is 
conclusive  evidence  that  he  was  not  wanting  in  the 
mental  capacity  required  to  make  a  will.  In  saying 
this  I  am  not  speaking  of  any  possible  delusion 
which  might  coexist  with  general  business  capacity. 
I  have  treated  of  the  subject  of  delusions  before.  I 
am  now  addressing  myself  to  the  question  of  general 
mental  incapacity  springing  from  imbecility  or  de 
mentia  only. 

Says  Mr.  Schouler  in  his  Treatise  on  Wills : — 

"  If  a  person  has  sufficient  understanding  and  in 
telligence  to  transact  his  ordinary  business,  he  is 
sufficiently  capable  of  making  a  will;  and  to  such  a 
test  testamentary  capacity  is  often  referred  in  dealing 
with  witnesses  who  testify  to  the  point  of  mental 
unsoundness.  .  .  .  It  is  a  rule  of  law  that  a  per 
son  who  is  capable  of  transacting  ordinary  business  is 
also  capable  of  making  a  valid  will.  It  is  not  required 
that  he  should  possess  a  higher  capacity  for  tJiat  than 
for  the  transaction  of  the  ordinary  affairs  of  business. 
A  man  capable  of  buying  and  selling  property,  set 
tling  accounts,  collecting  and  paying  out  money,  or 
borrowing  or  loaning  money,  must  usually  be  re 
garded  as  capable  of  making  a  valid  disposition  of 
his  property  by  will."  * 


*  Sec.  67,  note 
107 


ARGUMENT 

Says  the  Supreme  Court  of  New  Jersey: — 

"  Upon  a  careful  review  of  the  evidence  in  this 
case,  I  have  no  doubt  of  the  testator's  capacity  to 
make  this  will,  or  any  other  that  seemed  to  him  right. 
There  was  no  evidence  upon  which  a  jury  should  be 
permitted  to  find  against  testamentary  capacity. 
Such  a  verdict  could  not  be  sustained  except  by 
applying  the  maxim  voluntas  stat  pro  ratione  to  the 
jury  instead  of  the  testator.  The  testator  transacted 
his  own  business  long  after  the  date  of  the  will  with 
the  entire  approbation  of  all  his  friends.  No  one 
appears  then  to  have  doubted  his  capacity,  even 
when  his  conduct  was  disapproved  of."  * 

In  the  case  at  bar,  we  have  before  us  a  man  who 
at  the  time  of  making  this  will  was  extensively 
engaged  in  buying  and  selling  real  property,  mak 
ing  upon  his  own  judgment  large  loans  of  money, 
planning  and  erecting  houses,  and,  in  general,  man 
aging  with  prudence  and  thrift  an  estate  of  over  a 
quarter  of  a  million  dollars.  No  one  testifies  that 
in  any  business  transaction  he  showed  any  weak 
ness,  or  was  ever  taken  advantage  of  or  overreached. 
No  one  pretends  to  say  that  his  purchases  were 
extravagant  or  unprofitable.  No  one  claims  that  his 
loans  were  not  always  made  upon  ample  security. 

Putting  the  matter  to  the  test  of  the  rule  laid 
down  by  Schouler,  I  ask,  if  any  of  the  various 
transactions  in  which  the  testator  was  engaged  at 
the  time  he  made  this  will,  or  up  to  the  very  day  of 

*  Boylan  vs.  Meeker,  28  N.  J.  L.  278. 
108 


CONTEST    OF   PARKER'S   WILL 

his  death,  should  now  be  attacked  on  the  ground 
of  lack  of  mental  capacity  on  his  part  to  under 
stand  or  transact  it,  would  any  one  have  the  audacity 
to  say  that  the  attack  could  be  successfully  main 
tained  ?  Upon  such  evidence  as  has  been  sub 
mitted  here,  would  a  suitor  have  the  front  to  seek 
in  this  tribunal  to  set  aside  a  deed  of  property  made 
by  him  during  that  period,  upon  the  ground  that  he 
was  of  unsound  mind  ?  Upon  the  testimony  of 
the  three  women  I  have  named,  would  his  executors 
ever  dare  to  come  into  court  to  claim  for  his  estate 
immunity  from  liability  upon  a  contract  entered 
into  by  him,  on  the  ground  that  their  evidence 
shows  that  he  was  at  the  time  insane?  Suppose 
that  having  determined  to  devote  a  part  of  his 
fortune  to  benevolent  purposes,  the  testator  had,  on 
the  day  he  made  his  will,  given  that  part  in  money 
outright,  instead  of  bestowing  it  by  way  of  legacies, 
— suppose,  for  instance,  that  instead  of  bequeathing 
twenty-five  thousand  dollars  to  the  five  children  of 
his  brother-in-law,  Marshall  Pomeroy,  he  had  then 
and  there  given  them  that  amount  in  money, —  could 
his  legal  representatives  now  recover  back  the  money 
thus  given,  on  the  ground  of  lack  of  mental  capa 
city  on  his  part  to  make  the  gift?  Suppose  that 
at  the  same  time,  instead  of  making  a  legacy  of 
five  thousand  dollars  to  the  Sheltering  Arms  Soci 
ety,  he  had  given  that  amount  outright  to  the 
kind-hearted  ladies  who  manage  that  beneficent 
institution,  would  your  Honors  permit  his  legal 

109 


ARGUMENT 

representatives  to  come  here  now  to  claim  a  return 
of  the  gift,  on  the  ground  that  he  was  insane  at  the 
time  it  was  made  ? 

To  ask  these  questions  is  to  answer  them.  Yet 
if  upon  testimony  such  as  this  his  contracts  or  gifts 
while  living  could  not  be  set  aside,  still  less  can  his 
will.  It  takes  less  mental  capacity  to  make  a  will 
than  to  make  a  contract.  If  the  courts  would 
support  his  contracts  made  with  the  mental  capacity 
shown  in  this  case,  it  is  their  duty  to  support  his 
will.  In  the  language  of  Chief  Justice  Ryan:  "It 
is  as  much  the  duty  of  courts  to  uphold  his  will 
after  death  as  to  uphold  and  enforce  his  contracts 
during  life."  *  If,  then,  this,  instead  of  being  an 
attack  upon  his  will,  were  an  attack  upon  a  contract 
executed  by  him  on  the  same  day  that  he  executed 
his  will,  would  not  a  charge  of  unsoundness  of 
mind  based  upon  such  testimony  as  has  been  here 
adduced  be  laughed  out  of  court  ? 

And  now,  in  conclusion,  I  respectfully  submit 
that  the  ends  of  justice  and  the  rules  of  positive 
law  both  require  that  the  verdict  be  set  aside. 

It  has  been  repeatedly  said  by  our  courts  that 
the  right  to  make  a  will  to  take  effect  after  death 
stands  upon  the  same  footing  as  the  right  to  make 
a  gift  during  life ;  that  the  one  is  as  valuable  and 
as  sacred  as  the  other  ;  that  the  title  which  bene 
ficiaries  have  to  their  bequests  is  as  valid  as  any 
other  title  to  property ;  that  the  upsetting  of  wills 

*  Dodge  vs.  Williams,  50  N.  W.  1104. 
no 


CONTEST   OF   PARKER'S   WILL 

is  a  growing  evil ;  that  it  is  the  duty  of  courts  not 
to  permit  the  prejudice,  caprice,  or  individual  sense 
of  justice  of  juries  to  set  aside  the  wishes  of  the 
dead.  These  grave  utterances  of  learned  and 
eminent  judges  sound  like  a  mockery  if  upon  such 
testimony  as  I  have  rehearsed  a  testator  can  be 
adjudged  insane  and  his  will  broken. 

Thanking  your  Honors  for  the  patience,  courtesy, 
and  kindness  vouchsafed  me  during  this  argument, 
I  now  submit  into  your  hands  this  motion  for  new 
trial. 


in 


TO   THE   STATE   SUPREME   COURT 


THE  following  argument  was  made  in  the  Supreme  Court  of 
California  sitting  in  bane,  on  the  8th  day  of  March,  1893.  The 
question  presented  for  discussion  was  whether  a  court  has  the 
power  to  make  and  enforce  an  order  forbidding  the  publication  of 
the  proceedings  of  a  trial  pending  before  it.  Mr.  Delmas  contended 
that  it  had  not ;  and  in  this  view  was  sustained  by  the  Court. 

The  facts  out  of  which  the  controversy  arose  are  stated  in  the 
opinion  of  the  Court  delivered  by  Mr.  Justice  Paterson,  as  follows: — 

"When  the  case  of  Price  vs.  Price  —  an  action  for  divorce  — 
was  called  for  trial  in  the  Superior  Court  of  Santa  Clara  County, 
the  court  was  advised  that  the  evidence  would  probably  be  of  a 
filthy  nature,  and  thereupon  made  an  order  directing  « that  during 
the  trial  all  persons  be  excluded  from  the  court-room  except  the 
officers  of  the  court,  the  parties,  and  their  counsel.'  It  was 
further  ordered  '  that  no  public  report  or  publication  of  any  char 
acter  of  the  testimony  in  the  case  be  made.'  On  the  following 
day  the  petitioner  herein  caused  to  be  published  in  the  San  Jose 
Mercury,  a  newspaper  of  which  he  was  the  editor  and  publisher, 
an  article  referring  to  the  order  of  the  court  and  containing  what 
purported  to  be  the  testimony  of  the  witnesses.  Upon  an  affidavit 
setting  forth  the  facts  stated,  the  court  made  an  order  commanding 
Shortridge  to  appear  and  show  cause  why  he  should  not  be 
adjudged  guilty  of  contempt.  Mr.  Shortridge  in  his  answer  and 
at  the  hearing  disclaimed  any  intention  to  reflect  upon  the  court, 
or  show  any  disrespect  therefor,  and  claimed  that  in  publishing  a 
fair  and  true  report  of  the  testimony  and  proceedings  he  was 
simply  exercising  a  constitutional  right  with  which  the  court  could 
not  interfere  by  order  or  otherwise.  Thereafter  an  opinion  was 
filed  showing  that  the  learned  judges  of  the  court,  sensible  of  the 
delicate  position  they  occupied  in  determining  the  scope  of  their 
own  judicial  powers,  had  given  the  subject  most  careful  consider 
ation,  and  holding  it  to  be  their  duty  in  support  of  the  honor  of 
the  State  and  the  dignity  of  the  court  to  punish  the  respondent  for 
violating  the  order.  A  judgment  was  entered  adjudging  Shortridge 
guilty  of  contempt  of  court,  and  ordering  him  to  pay  a  fine  of  one 
hundred  dollars.  Thereupon  the  petitioner  herein  applied  for  a 
writ  of  certiorari,  which  was  granted,  and  the  matter  having  been 
heard  and  submitted,  we  are  now  called  upon  to  determine  whether 
the  court  exceeded  its  jurisdiction  in  adjudging  the  petitioner  guilty 
of  contempt  on  the  facts  stated."  * 

*  99  Cal.  Rep.,  p.  5*8. 


IN  RE  SHORTRIDGE 

MAY  IT  PLEASE  YOUR  HONORS  :  This  proceed 
ing  was  instituted  to  review  a  judgment  punishing 
the  petitioner  for  contempt,  charged  to  have  been 
committed  in  publishing  the  testimony  given  on  the 
trial  of  a  case,  in  disregard  of  an  order  forbidding 
such  publication. 

The  facts  lie  within  a  narrow  compass,  and  may 
be  briefly  stated  as  follows :  On  the  loth  day  of 
January  of  the  present  year,  when  the  divorce  case 
of  Price  vs.  Price  was  called  for  trial,  the  Superior 
Court  of  the  County  of  Santa  Clara  ordered  that 
the  hearing  be  had  in  private,  and  that  no  publica 
tion  or  other  report  of  the  testimony  be  made. 
The  following  morning,  the  petitioner,  though 
aware  of  the  order,  published  in  a  newspaper  of 
which  he  was  the  editor  a  fair  and  truthful  statement 
of  the  evidence  given  on  the  preceding  day.  Being 
advised  of  this  fact,  the  court  cited  him  to  show 
cause  why  he  should  not  be  punished  for  his  dis 
obedience.  He  appeared,  and  maintained  that  it 
was  his  right  to  publish  the  proceedings ;  that  that 
right  was  not  impaired  by  the  fact  that  the  trial  was 

"5 


ARGUMENT 

had  behind  closed  doors,  nor  affected  by  the  order 
forbidding  the  publication.  The  court,  not  acced 
ing  to  these  views,  adjudged  him  guilty  of  contempt. 
In  the  elaborate  opinion  rendered  by  the  court, 
this  course  is  vindicated  on  the  ground  that  it  was 
warranted  by  that  provision  of  the  Code  of  Civil 
Procedure  which  authorizes  it  to  punish  as  a  con 
tempt  any  disobedience  of  its  lawful  orders.  It 
said : — 

"In  this  matter,  the  court  relies  for  its  authority 
upon  section  1209  of  the  Code  of  Civil  Procedure,  on 
Contempts,  which  says  :  *  That  any  disobedience  to 
a  lawful  order  of  court  shall  be  contempt.'  The  court 
is  not  asserting  that  there  has  been  any  unlawful 
interference  with  its  process  or  proceedings,  but  that 
there  has  been  a  disobedience  to  a  lawful  order 
which  it  had  authority  to  make." 

The  court  held  that  section  125  was  enacted  for 
the  purpose  of  securing  absolute  secrecy  of  the 
proceedings  in  divorce  cases  ordered  tried  in  private, 
and  that,  by  necessary  implication,  it  conferred  the 
power  of  preventing  their  publication  out  of  court. 
In  its  opinion  it  said  : — 

'  The  evident  purpose  of  that  act  was,  that  in 
cases  of  divorce,  criminal  conversation,  seduction, 
and  breach  of  promise  of  marriage  —  those  being 
alone  enumerated  in  the  statute  —  the  entire  evi 
dence  should  not  be  produced  before  the  public." 

The  court  considered  that  section  to  have  been 
enacted  in  furtherance  of  morality,  and  to  have  for 

116 


IN  RE  SHORTRIDGE 

its  object  the  protection  of  the  public  mind  from 
contamination  by  the  prurient  revelations  often  inci 
dent  to  actions  of  divorce,  criminal  conversation, 
seduction,  and  breach  of  promise  of  marriage.  Said 
the  court  in  its  opinion  : — 

"  The  main  purpose  of  this  enactment  was  to  pro 
mote  public  morals.  How  the  public  morals  can  be 
promoted  by  detailing  to  the  world  the  testimony  in 
low  and  filthy  divorce  cases,  or  blazoning  forth  the 
injuries  that  some  poor,  unfortunate  girl  may  have 
suffered,  or  by  heralding  the  connection  of  good  and 
respectable  and  moral  people  with  divorce  proceed 
ings,  where  they  are  unfortunately  and  unwillingly 
as  witnesses,  is  something  which  the  court  cannot 
understand,  and  which  the  Legislature  unquestion 
ably  intended  to  prohibit." 

The  position  of  the  court,  and  of  the  learned 
and  eminent  counsel  who  represent  it,  however 
stated,  ultimately  amounts  to  this :  that  the  pub 
lication  in  question  was  an  interference  with  the 
proceedings  of  the  court,  which  the  court  had  the 
inherent  power  to  punish  as  a  contempt ;  that  it 
constituted  a  disobedience  of  a  lawful  order  of  the 
court  prohibiting  it ;  and  that  it  was  a  violation  of 
the  secrecy  of  the  proceedings  of  the  court  enjoined 
by  the  statute  law  of  the  State. 

The  petitioner  challenges  the  correctness  of  these 
positions.  His  contentions  may  be  stated  as  fol 
lows  :  — 

First — The  liberty  of  speech  and  of  the  press  is 
117 


ARGUMENT 

his  by  natural  right,  consecrated  and  made  invio 
lable  by  the  Constitution  of  the  State.  The  only 
limitation  placed  upon  that  liberty  is  the  condition 
that  it  shall  not  be  exercised  to  the  injury  of  others. 
As  regards  a  court  of  justice,  the  lawful  limits  of 
that  liberty  are  not  transgressed  until  its  exercise  is 
made  to  interfere  with  the  due  and  proper  per 
formance  of  the  duties  with  which  the  court  is 
charged.  Before  the  court  can  complain,  this  in 
terference  must  be  proven.  It  being  conceded  that 
the  publication  in  this  case  was  a  true  and  correct 
report  of  the  testimony  given  in  the  cause  on  trial, 
such  publication  cannot  have  interfered  with  the 
due  and  proper  performance  of  the  duties  of  the 
court  in  that  case,  and  cannot  therefore  constitute 
an  unlawful  use  of  that  liberty. 

Secondly — The  order  prohibiting  the  publication 
is  a  false  quantity  in  the  case.  The  power  of  a 
court  to  control  action  by  command  or  prohibition 
is  restricted  to  the  persons  before  it.  It  cannot 
determine  the  conduct  of  those  over  whom  it  has 
acquired  no  jurisdiction.  The  petitioner  not  being 
a  party  to  the  action  on  trial,  the  order  forbidding 
the  publication  of  the  proceedings  cannot  operate 
to  affect  his  rights  or  abridge  his  liberty.  If  what 
he  did  is  not  by  law  made  unlawful,  it  cannot  be 
made  so  by  the  order  of  a  court  which  had  no 
jurisdiction  over  him.  If,  then,  the  publication 
made  by  the  petitioner  would  not  have  been 
unlawful  in  the  absence  of  an  order  prohibit- 

118 


IN  RE  SHORTRIDGE 

ing  it,  it  was  not  rendered  unlawful  by  such  an 
order. 

Let  it  be  noted  here  that  there  was  nothing  in 
the  publication  in  question  which  could  shock 
public  morality.  But  were  it  otherwise  it  would 
not  affect  the  question.  The  duties  and  functions 
of  a  court  are  limited  to  the  adjudication  of  contro 
versies  of  which  it  has  acquired  jurisdiction.  It 
is  not  constituted  the  champion  or  defender  of 
morality  at  large.  The  author  of  an  obscene  pub 
lication  may  be  guilty  of  an  offense  triable  by 
indictment  if  he  therein  violates  the  law  of  the 
land.  He  does  not  become  guilty  of  an  offense 
triable  as  a  contempt  from  the  mere  fact  that  he 
therein  disobeys  the  order  of  a  court  which  has  no 
jurisdiction  over  him. 

Thirdly — It  is  the  right  of  the  public  to  know 
the  proceedings  of  courts.  Judges  are  but  the 
servants  of  the  people,  appointed  to  dispense  that 
justice  of  which  the  people,  as  sovereigns,  are  the 
source.  The  people,  therefore,  have  a  right  to  be 
informed  of  the  manner  in  which  these,  its  servants, 
are  performing  the  task  assigned  them.  The  pro 
ceedings  of  courts  are,  therefore,  public  property. 
Any  legislative  enactment  that  the  public  shall  be 
debarred  from  a  knowledge  of  their  proceedings 
would  be  void.  If,  then,  section  125  of  the  Code 
of  Civil  Procedure  was  intended  to  shut  out  the 
public  from  information  of  the  proceedings  in  the 
cases  which  it  enumerates,  the  provision  is  uncon- 


ARGUMENT 

stitutional.  But  that  section  has  no  such  scope  or 
purpose.  It  aims  simply  at  the  regulation  of  pro 
ceedings  in  court,  and  not  their  divulgment  or 
discussion  out  of  court. 

Before  entering  upon  a  vindication  of  the  posi 
tions  thus  assumed  by  the  petitioner,  I  desire  to 
eliminate  from  the  discussion  a  matter  which  was 
attempted  to  be  imported  into  it  in  the  court  below, 
and  which  may  again  be  insisted  on  here. 

The  petitioner  was  neither  charged  with  nor  tried 
for  a  contempt  consisting  of  an  interference  with  the 
conduct  of  the  trial,  or  with  the  witnesses  or  testi 
mony  to  be  produced  before  the  court.  There 
was  no  allegation  of  such  interference  in  the  affidavit. 
That  document,  after  setting  forth  the  order  of  the 
court  directing  that  the  trial  be  had  in  private,  and 
that  no  public  or  other  report  or  publication  of  any 
character  of  the  testimony  be  made,  simply  states 
that  the  trial  was  accordingly  had  with  closed  doors, 
and  that  the  testimony  of  various  witnesses  was 
therein  given.  It  then  avers  that  Charles  M. 
Shortridge,  being  the  editor  and  publisher  of  the 
San  Jose'  Daily  Mercury,  "  willfully  and  unlawfully 
and  contumaciously  disregarding  the  order  of  said 
court,  made  and  entered  as  above  recited,  caused  to 
be  printed  and  published  in  said  San  Jose'  Daily 
Mercury  what  purported  to  be  the  testimony  of 
said  witnesses,  .  .  .  and  did  publish  to  a  con 
siderable  extent  the  testimony  as  given  in  fact  by 
said  witnesses."  The  citation  issued  upon  that 

120 


IN  RE  SHORTRIDGE 

affidavit  required  Mr.  Shortridge  to  appear  and 
show  cause  why  he  "  should  not  be  punished  for 
contempt  of  court,  in  publishing  in  the  San  Jose 
Daily  Mercury  of  the  issue  of  January  n,  1893,  the 
testimony  of  certain  witnesses  given  in  the  above 
case,  contrary  to  the  order  of  the  judge  of  Depart 
ment  i  of  the  Superior  Court,  duly  made  and 
entered  on  January  10,  1893,  prohibiting  it." 

Of  course,  the  trial  of  Mr.  Shortridge  for  con 
tempt  could  not  be  broader  than  the  charge  thus 
made.  The  law  provides  that  "when  the  contempt 
is  not  committed  in  the  immediate  view  and  pres 
ence  of  the  court  or  judge  at  chambers,  an  affidavit 
shall  be  presented  to  the  court  or  judge  of  the  facts 
constituting  the  contempt."  *  The  party  may  then 
be  cited  to  answer,  f  When  he  appears,  "  the  court 
or  judge  must  proceed  to  investigate  the  charge,  and 
must  hear  any  answer  which  the  person  arrested  may 
make  to  the  same,"  J  and  "  upon  the  answer  and 
evidence  taken,  the  court  or  judge  must  determine 
whether  the  person  proceeded  against  is  guilty  of 
the  contempt  charged."  §  The  affidavit  stands  in 
the  place  of  an  indictment.  The  power  and  juris 
diction  of  the  court  are  to  inquire  into  the  charge 
made  in  the  affidavit.  The  trial  cannot  be  broader 
than  the  charge.  This  is  not  only  manifest  from 
the  language  of  the  statute  and  the  general  princi 
ples  of  law  applicable  to  criminal  proceedings,  but 

*  C.  C.  P.,  sec.  121 1.  J  Id.,  sec.  1217. 

t  Id.,  sec.  1 21 2.  $  Id.,  sec.  1218. 

121 
i 


ARGUMENT 

is  the  direct  result  of  the  doctrine  laid  down  by  the 
Court  in  Batchelder  vs.  Moore.  * 

Had  the  court  made  an  order  excluding  the  wit 
nesses  from  the  court-room,  and  had  the  petitioner, 
by  publication  pending  the  trial,  communicated  the 
testimony  to  the  excluded  witnesses,  thereby  impart 
ing  information  which  the  court,  in  the  exercise  of 
its  legitimate  powers,  had,  in  effect,  ordered  withheld 
from  them,  and  had  these  facts  been  regularly 
brought  to  the  attention  of  the  court  by  an  affidavit 
under  section  1211,  he  might  then  possibly  have 
been  tried  for  an  improper  interference  with  the 
proceedings  of  the  court.  There  is  here,  I  repeat, 
no  such  charge.  Nor  has  the  petitioner  been  tried 
for  any  such  interference.  It  is  not  stated  that  the 
witnesses  were  excluded  from  the  court-room,  nor 
that,  if  they  were,  they  ever  saw  or  heard  of  the 
publication  made  by  the  petitioner.  The  court,  in 
its  opinion,  expressly  removed  the  case  from  that 
ground,  saying: — 

"  When  the  court  orders  the  exclusion  of  witnesses 
pending  the  trial,  so  that  there  cannot  be  communi 
cated  to  witnesses  outside  the  evidence  which  is  being 
given  by  the  witnesses  on  the  stand,  I  am  fully  satis 
fied —  and  the  authorities  sustain  me  —  that  it  does 
not  lie  with  the  newspapers  to  make  an  entire  pub 
lication  of  that  testimony,  so  that  what  the  court 
prohibited  them  to  learn  may  be  given  to  witnesses 
on  the  outside.  If  it  is  done,  that  is  an  interference 

*  42  Cal.  412. 

122 


IN  RE  SHORTRIDGE 

with  the  proceedings  of  the  court,  and  is  punishable 
as  a  contempt.  I  am  not,  however,  basing  the  action 
of  this  court  upon  that  code  provision,  and  the 
matter  is  not  narrowed  down  into  that  channel,  and 
cannot  be  drifted  there  by  the  position  of  counsel." 

The  whole  question  in  the  case  really  is  whether 
the  facts  stated  in  the  affidavit  presented  to  the 
court  show  the  commission  of  an  act  constituting  a 
contempt.  If  they  do  not,  the  petitioner  could  not 
be  punished  for  one;  for,  as  was  said  by  this  Court 
in  Batchelder  vs.  Moore,  "if  there  be  no  affidavit 
presented,  there  is  nothing  to  set  the  power  of  the 
court  in  motion;  and  if  the  affidavit,  as  presented, 
be  one  which,  upon  its  face,  fails  to  state  the  sub 
stantive  facts  which  in  point  of  law  did  or  might 
constitute  the  contempt  on  the  part  of  the  accused, 
the  same  result  must  follow, — for  there  is  no  dis 
tinction  in  such  a  case  between  the  utter  absence 
of  an  affidavit  and  the  presentation  of  one  which  is 
defective  in  substance  in  stating  the  facts  constitut 
ing  the  alleged  contempt." 

The  question,  broadly  stated,  then,  is  briefly  this : 
When  in  this  State  a  Superior  Court  is  trying  a 
divorce  case  in  private,  and  has  made  an  order  that 
no  public  or  other  report  or  publication  of  any 
character  of  the  testimony  be  made,  does  the  mere 
fact  that  a  person,  in  conscious  disregard  of  the 
order,  publishes  the  testimony  given  upon  the  trial 
constitute  a  contempt  ? 

The  petitioner  claims,  in  the  first  place,  that  the 

123 


ARGUMENT 

publication  did  not  and  could  not  interfere  with  the 
proceedings  of  the  court,  and  was,  therefore,  within 
the  limits  of  his  constitutional  rights. 

That  the  freedom  of  the  press  is  one  of  the  most 
valuable  and  important  of  the  liberties  enjoyed  by  a 
free  people,  one  which  it  is  the  duty  of  all  concerned 
in  the  administration  of  public  affairs  to  protect,  and 
the  right  of  every  citizen  to  defend  and  maintain 
inviolate,  is  a  truth  too  obvious  to  need  elaboration. 
It  is  a  topic  upon  which  judges  and  statesmen  have 
lavished  their  combined  encomiums.  Though  the 
mind  is  prone  to  swell  with  the  magnitude  of  the 
subject,  yet  when  I  say  that  the  liberty  of  speech  is 
one  of  the  invaluable  rights,  one  of  the  great  bul 
warks  of  liberty,  essential  to  the  freedom  and 
security  of  the  State,  to  be  held  sacred  and  forever 
inviolate,  I  do  not  echo  the  tropes  with  which  poets 
and  orators  have  adorned  an  inspiring  theme,  but 
repeat  the  words  which  the  sober  and  thoughtful 
founders  of  States  from  the  days  of  the  Revolution  to 
the  present  time  have  incorporated  in  every  Ameri 
can  constitution.  When  I  say  that  the  freedom  of 
the  press  is  a  principal  pillar  of  a  free  government, 
and  that  when  this  support  is  taken  away  the  consti 
tution  of  a  free  society  is  dissolved  and  tyranny  is 
erected  on  its  ruins,  I  reutter  the  very  words  of 
one  who  among  the  Fathers  of  our  Government 
was  perhaps  the  least  inclined  to  hyperbole. 

This  liberty,  however  priceless,  cannot  never 
theless  be  said  to  be  boundless  and  absolute. 

124 


IN  RE  SHORTRIDGE 

Nothing  can  be  so  in  a  society  ruled  by  organized 
government.  The  right  of  life — the  foundation 
of  all  others  —  is  itself  held  under  certain  unavoid 
able  limitations.  What,  then,  are  the  bounds  within 
which  the  liberty  of  the  press  must  be  enjoyed,  and 
beyond  which  it  cannot  extend?  In  ages  past  gov 
ernments  undertook  to  regulate  and  limit  it  by  com 
pelling  the  submission  of  all  intended  publications 
to  their  inspection,  and  suppressing  those  which  did 
not  receive  their  sanction.  The  same  era  which 
brought  forth  the  invention  of  printing  also  gave 
birth  to  the  licenser  of  the  press.  The  earliest 
formed  of  the  American  commonwealths  were  the 
first  to  break  the  fetters  of  a  licensed  press,  and  to 
proclaim  liberty  of  speech  as  one  of  the  fundamen 
tal  rights  of  freemen. 

What  are,  then,  the  constitutional  limitations 
imposed  upon  the  enjoyment  of  this  right?  None 
other,  I  say,  than  those  which  are  imposed  upon 
the  enjoyment  of  all  other  rights ;  that  is,  that  it 
must  not  be  exercised  to  the  injury  of  others.  Any 
thing  short  of  this  is  permissible.  The  maxim,  sic 
utere  tuo  ut  alienum  non  l<edasy  which  formulates  the 
only  limitation  upon  the  use  of  property,  also  formu 
lates  the  only  limitation  upon  the  enjoyment  of 
personal  liberty.  The  acquisition  of  property  is  a 
fundamental  right,  but  it  must  be  exercised  without 
injury  to  others.  It  does  not  sanction  robbery  or 
theft.  Freedom  of  action  is  similarly  limited.  It 
does  not  justify  assaults  upon  the  person  or  destruc- 

125 


ARGUMENT 

tion  of  the  property  of  others.  It  gives  no  immunity 
to  arson,  rape,  or  murder.  And  so  the  liberty  of 
the  press  stops  at  the  point  where  a  further  exercise 
would  invade  the  rights  of  others.  It  does  not  war 
rant  libel  or  violations  of  public  decency  or  morality. 
All  within  these  limits,  however,  is  legitimate.  1 
venture  to  lay  it  down  as  an  axiom,  that  in  a  court 
of  justice  no  one  can  complain  of  the  use  which 
another  has  made  of  his  liberty,  unless  he  can  show 
that  that  use  is  an  invasion  of  some  right  which  is 
his.  Failing  that,  the  proper  bounds  of  that  liberty 
have  not,  as  to  him,  been  transgressed. 

The  case  before  your  Honors  is  one  where  a 
court  of  justice  claims  that,  as  to  it,  a  citizen  has 
abused  the  liberty  of  a  free  press.  What  must  the 
court  show  in  order  to  substantiate  that  claim  ? 
Upon  the  principles  already  announced,  it  must 
show  that  that  liberty  has  been  used  so  as  to  inter 
fere  with  the  rights  of  the  court.  The  court,  com 
plaining  of  an  individual,  is  bound,  like  any  other 
person  or  body,  first,  to  show  interference  with  its 
rights.  If  there  is  no  such  interference,  there  is, 
so  far  as  the  court  is  concerned,  nothing  legally 
reprehensible. 

Apply  these  principles  to  the  matter  in  hand. 
When  the  divorce  case  of  Price  vs.  Price  was  called 
for  trial,  the  Superior  Court  of  Santa  Clara  County 
became  at  once  charged  with  the  performance  of 
certain  duties.  Those  duties  were  to  hear  the 
testimony  of  the  parties,  and  decide  the  controversy 

126 


IN  RE  SHORTRIDGE 

according  to  the  evidence  and  the  law.  Any  act 
which  interfered  with  the  proper  performance  of 
these  duties  would  constitute  an  invasion  of  the 
rights  of  the  court,  and  consequently  an  abuse  of 
the  actor's  liberty  of  action.  For  instance,  and 
merely  by  way  of  illustration,  if  during  the  session 
of  the  court  an  individual  had  conducted  himself 
in  a  noisy  and  boisterous  manner,  so  as  to  interfere 
with  the  hearing  of  the  testimony  or  arguments,  or 
if  he  had  prevented  witnesses  from  attending  court, 
this  would  have  constituted  an  invasion  of  the 
province  of  the  court  and  a  transgression  of  the 
proper  bounds  of  his  liberty.  But  if  the  complaint 
were  leveled  against  an  act  which  did  not  so  trans 
gress,  it  would  have  no  foundation  in  law. 

What,  now,  is  the  act  complained  of  by  the  court 
in  this  case  ?  This  :  that  while  a  certain  cause  was 
being  tried  by  the  court,  sitting  without  a  jury, 
Mr.  Shortridge  published  a  truthful  report  of  the 
testimony.  Was  this  use  by  Mr.  Shortridge  of  the 
liberty  of  the  press  a  use  which  could  afford  just 
ground  of  complaint  ?  In  other  words,  was  the 
publication  an  act  which  interfered  with  the  due 
and  proper  performance  by  the  court  of  the  duties 
with  which  it  was  charged  in  the  trial  of  that  case  ? 
If  there  was  no  such  interference,  there  was  no 
abuse  of  the  liberty,  and  the  court  cannot  be  heard 
to  complain. 

That  there  was  no  such  interference  is  manifest. 
Mr.  Shortridge  merely  published  testimony  already 

127 


ARGUMENT 

given.  He  but  echoed  a  voice  which  the  court  had 
already  heard.  How  could  this  be  an  interference 
with  the  performance  of  the  duties  and  functions 
of  the  court,  which  were  to  hear  the  testimony  and 
decide  the  case  according  to  the  evidence  and  the 
law?  How  can  the  truthful  publication  of  the 
proceedings  of  the  trial  produce  or  have  the 
tendency  to  produce  such  a  result  ?  Does  it  inter 
fere  with  the  judge's  reception  or  consideration  of 
the  evidence  that  he  reads  in  a  newspaper  a  report 
of  testimony  which  he  has  already  heard  from  the 
witnesses'  lips,  and  which,  in  all  probability,  before 
deciding  the  cause,  he  will  again  read  from  his  own 
notes  or  in  the  reporter's  transcript  ?  It  is  impos 
sible  to  imagine  that  it  does.  Can  the  publication 
of  a  truthful  report  of  proceedings  interfere  with 
the  proper  decision  of  a  cause?  It  is  not  conceiv 
able  that  it  can. 

But  it  is  claimed  that  the  publication  of  the  pro 
ceedings  might  have  interfered  with  the  testimony 
in  the  case.  How?  Because,  it  is  answered,  wit 
nesses  might  well  make  disclosures,  under  the 
assurance  that  their  utterances  would  remain  secret, 
which  they  might  be  tempted  to  withhold  if  op 
pressed  with  the  fear  of  publicity. 

In  the  first  place,  the  argument  proves  too  much. 
If  it  is  sound,  it  would  result  in  the  prohibition  of 
the  publication  of  testimony  in  all  cases.  If  it  be 
assumed  that  a  witness  may  for  these  reasons  with 
hold  testimony  in  a  private  action  for  seduction, 

128 


•3  R  A 
rUNIVERSlT 

IN  RE  SHORTRIDGE 

divorce,  or  criminal  conversation,  he  might  for  the 
same  reason  withhold  it  in  a  criminal  prosecution  for 
rape  or  adultery.  Will  it,  then,  be  held  at  this  date 
that  on  this  ground  it  is  an  interference  with  the 
proceedings,  and  therefore  a  contempt  of  court,  to 
publish  the  testimony  given  upon  a  public  trial  for 
these  offenses? 

In  the  next  place,  if  the  contempt  charged  con 
sists  in  interfering  with  the  proceedings  of  the 
court,  the  facts  showing  such  interference  must  be 
alleged.  It  cannot  be  sufficient  to  aver  generally 
that  the  accused  has  interfered  with  the  proceedings, 
or  that  he  has  done  something  which  might  possi 
bly  have  had  that  effect.  The  act  done  must  be 
stated,  and  it  must  further  be  shown  how  it  did  in 
point  of  fact  interfere.  Proceedings  for  contempt 
are  criminal  in  their  nature.  All  intendments  are 
in  favor  of  the  accused.  All  the  facts  essential  to 
show  the  commission  of  the  offense  must  be  cate 
gorically  set  forth.  If,  then,  the  contempt  is  charged 
to  consist  in  interference  with  the  proceedings  of 
the  court  in  a  given  case,  in  that  the  accused  pre 
vented  a  witness  from  testifying,  or  knowingly 
attempted  to  do  so,  the  facts  constituting  such  pre 
vention  or  attempt  must  be  definitely  alleged.  There 
is  no  averment  here  that  any  witness  did,  on  account 
of  any  act  of  the  accused,  fail  to  testify,  nor  that 
after  the  publication  in  question  there  were  any  wit 
nesses  to  be  called  into  court  who  might,  on  account 
of  the  publication,  have  been  prevented  from  testi 
ng 


ARGUMENT 

fying.  From  the  mere  fact  of  the  publication  of 
the  testimony  it  will  surely  not  be  inferred,  either  as 
matter  of  law  or  fact,  that  witnesses  were  actually 
so  prevented.  If  the  publication  were  made  after 
the  close  of  the  testimony,  or  if  it  were  made  pend 
ing  the  giving  of  the  testimony,  in  a  remote  county, 
in  a  print  which  the  witnesses  never  saw,  it  surely 
could  not  be  held  to  have  prevented,  nor  to  have 
had  a  tendency  to  prevent,  any  witness  from  testify 
ing.  The  bare  fact  stated  here  is,  that  the  testimony 
was  published  —  nothing  more.  This,  I  repeat, 
does  not  amount  to  an  allegation  that  there  was  an 
interference  with  the  proceedings,  in  preventing  or 
attempting  to  prevent  any  witness  from  testifying. 

But,  lastly,  this  whole  argument  proceeds  upon 
the  assumption  that  witnesses  will  not  tell  the  truth 
if  they  know  that  their  testimony  is  to  be  made 
public.  What  warrant  is  there  for  this  assumption  ? 
A  witness  is  sworn  to  tell  the  truth  and  the  whole 
truth.  A  violation  of  his  oath  is  a  crime.  What 
right  have  you  to  assume  that  he  will  incur  the 
penalties  of  a  felony  because  he  knows  that  the 
truth  which  he  is  called  upon  to  tell  will  be  repeated 
out  of  court  ?  No  more,  I  submit,  than  you  have 
to  assume  that  a  juror  will  not  render  a  true  verdict, 
or  a  judge  will  not  proceed  to  judgment  according 
to  law,  because  he  knows  that  the  verdict  or  deci 
sion  will  appear  in  the  next  morning's  papers. 

It  has  also  been  urged  that  the  publication  of 
proceedings  in  this  class  of  cases  will  have  a  ten- 
is0 


IN  RE  SHORTRIDGE 

dency  to  prevent  parties  from  instituting  them, — 
that,  for  instance,  an  injured  wife  might  seek  redress 
for  the  misconduct  of  her  husband  if  assured  of 
secrecy,  who  would  shrink  from  doing  so  if  the 
proceedings  in  her  action  for  divorce  were  to  be 
made  public. 

But  is  not  this  assumption  fanciful  ?  Is  there 
any  real  danger  that  any  innocent  woman  will  ab 
stain  from  seeking  redress  for  fear  of  exposing  the 
misdeeds  of  the  husband  who  has  wronged  her  ? 
If  innocent,  what  has  she  to  fear  from  publicity  ? 
Will  not  secrecy,  on  the  other  hand,  expose  her  to 
the  misrepresentations  which  slander  is  sure  to  dis 
seminate  in  obscurity,  and  which  the  light  of  truth 
would  dispel  ?  Indeed,  the  effect  of  the  statute,  if 
thus  construed,  would  seem  to  be  rather  to  shield 
the  guilty  than  to  protect  the  innocent. 

But  let  us  bear  in  mind  that  the  argument  I  am 
now  dealing  with  is  one  put  forward  to  show  that 
the  publication  in  question  interfered,  or  had  a 
tendency  to  interfere,  with  the  proceedings  in  the 
case  then  on  trial — not  with  cases  that  might  there 
after  be  brought.  Because  the  publication  he  made 
may  have  a  tendency  to  deter  the  bringing  of  future 
actions  of  divorce,  Mr.  Shortridge  could  surely  not 
be  held,  on  that  account,  to  have  interfered  with 
the  proceedings  in  the  action  then  on  trial.  That 
publication  had  certainly  not  interfered  with  the 
institution  of  that  action.  To  the  argument,  there 
fore,  that  what  Mr.  Shortridge  did  was  an  inter- 


ARGUMENT 

ference  with  the  proceedings  of  the  trial  of  the 
action  then  pending  in  this,  that  such  publication 
has  a  tendency  to  deter  parties  from  instituting  such 
actions,  the  simple  answer  is,  that  it  caused  no  such 
interference  in  that  case,  for  the  action  had  been 
brought  before  the  publication.  That  such  pub 
lication  may  deter  parties  from  bringing  actions  for 
divorce  in  the  future  is  a  matter  which  could  not 
constitute  an  interference  with  the  proceedings  in 
that  case ;  and  that  is  all  that  the  accused  could 
possibly  be  charged  with  here. 

In  what  way,  then,  has  the  petitioner  transgressed 
the  proper  limits  of  his  constitutional  liberty  ? 
What  rights  guaranteed  to  others  has  he  invaded  ? 
Whose  freedom  of  action  coexistent  and  coequal 
with  his  own  has  he  abridged?  Whom  has  he 
injured?  The  answer  is,  No  one.  He  stands 
here  before  a  court  of  justice,  charged  with  an 
offense,  called  upon  to  answer  for  a  crime.  If  he 
has  interfered  with  no  one,  who  shall  complain  ?  If 
he  has  injured  no  one,  who  shall  demand  redress  ? 
If  he  has  done  no  wrong,  by  what  law  shall  he  be 
punished  ? 

It  is  submitted  that,  in  making  the  publication  in 
question,  the  petitioner  exercised  his  constitutional 
right  within  proper  limits  ;  that  the  publication  was 
not  of  a  nature  to  interfere  with  the  duties  and 
functions  of  the  court ;  that  there  is  no  charge  that 
he  interfered  with  the  conduct  of  the  trial  or  the 
proceedings  of  the  court,  and  that,  therefore,  he 

132 


IN  RE  SHORTRIDGE 

cannot,  by  virtue  of  any  inherent  power  in  the 
court,  be  subjected  either  to  punishment  or  censure. 

But  it  is  urged  that  the  court  made  an  order 
prohibiting  the  publication  of  its  proceedings  ;  that 
the  publication  made  by  the  petitioner  was  in  con 
scious  disregard  of  that  order,  and  is  therefore 
unlawful  and  a  contempt. 

With  great  respect  for  the  learned  judges  of  the 
court  below,  who  laid  much  stress  upon  it,  it  is 
submitted  that  the  order  is  a  false  quantity  in  the 
case.  The  petitioner  was  not  a  party  to  the  action 
of  Price  vs.  Price.  He  was  not  before  the  court. 
The  court  had  acquired  no  jurisdiction  over  his 
person.  No  order,  then,  which  the  court  could 
make  in  that  case  could  affect  his  rights  or  operate 
as  a  regulation  of  his  conduct.  Judicial  power  is 
the  power  to  hear  and  determine  the  controversies, 
redress  the  wrongs,  or  enforce  the  rights  of  parties 
regularly  brought  within  its  jurisdiction.  Beyond 
this,  the  functions  of  a  judicial  tribunal  do  not 
extend.  It  has  no  power  of  command  or  prohi 
bition  over  the  community  at  large.  It  may  by 
its  decrees  control  the  actions  of  the  parties  before 
it,  and  prescribe  rules  for  their  conduct,  to  dis 
regard  which  would  in  them  be  unlawful.  But  it 
cannot  adjudicate  beforehand  that  parties  not  before 
it  shall  have  no  right  to  pursue  any  given  line  of 
action. 

When  the  Superior  Court  of  Santa  Clara  County  by 
its  order  prohibited  the  whole  community,  and  inclu- 

133 


ARGUMENT 

sively  the  petitioner,  from  making  any  public  or 
other  report  or  publication  of  any  character  of  the 
testimony  in  the  cause  then  pending  before  it,  it 
adjudged,  by  necessary  implication,  that  the  com 
munity,  the  petitioner  included,  had  no  legal  right 
to  make  such  report  or  publication.  But  the  court, 
having  no  jurisdiction  over  the  community  at  large, 
or  over  the  petitioner,  had  no  power  to  determine  or 
adjudge  what  their  rights  were  or  were  not.  To 
prescribe  rules  of  conduct  for  a  community  is  the 
function  of  a  legislator,  not  a  judge.  To  furnish  a 
standard  by  which  the  legality  or  illegality  of  the 
actions  of  the  people  of  a  State  at  large  shall  be 
determined  is  to  promulgate  a  law,  and  not  a  judicial 
decree. 

Undoubtedly,  disobedience  of  a  lawful  order  of 
a  court  constitutes  an  offense.  It  is  so  expressly 
declared  by  subdivision  5  of  section  1209  of  the 
Code  of  Civil  Procedure,  which  says  that  dis 
obedience  to  any  lawful  judgment,  order,  or  process 
of  the  court  is  a  contempt  of  the  authority  of  the 
court.  But  it  is  obvious  that  this  disobedience  must 
be  by  one  whom  the  court  had  a  right  to  command, 
over  whom  it  had  acquired  jurisdiction.  Any  at 
tempt  of  the  court  to  command  others  is  vain.  As 
to  them  the  order  is  a  nullity. 

The  justification  of  the  order  made  in  this  case  is 
stated  in  the  proposition  that  the  court  had  a  right, 
by  forbidding  their  publication,  to  protect  the  public 
from  the  moral  contamination  of  the  disclosures 

134 


IN  RE  SHORTRIDGE 

which  attend  the  trial  of  actions  of  divorce,  criminal 
conversation,  seduction,  or  breach  of  promise  of 
marriage. 

A  short  answer  to  this  proposition  lies  in  the  fact 
that  the  publication  made  here  by  Mr.  Shortridge 
was  neither  in  form  nor  substance  of  a  nature  to 
offend  the  most  delicate  sensibility.  This  justifica 
tion  of  the  position  of  the  court  being  based  upon 
the  assumption  that  the  publication  will  be  against 
public  morals,  if  in  point  of  fact  it  is  not  so,  the 
public  are  in  no  danger, — they  need  no  protection, — 
and  the  justification  vanishes. 

But  I  prefer  to  place  the  reply  upon  a  broader 
footing.  That  the  court  has,  upon  the  grounds 
claimed  here,  no  power  to  make  such  an  order  is  a 
proposition  which  results  from  the  inherent  limita 
tions  imposed  upon  judicial  authority.  As  I  have 
already  remarked,  a  court  is  created  to  interpret  and 
apply  the  law  in  controversies  pending  before  it. 
Its  functions  are  limited  to  the  redress  of  the  wrongs 
or  the  enforcement  of  the  rights  of  parties  legally 
brought  to  its  bar.  Beyond  this  they  do  not  extend. 
If  it  takes  cognizance  of  the  claims  of  public  moral 
ity,  it  does  so  no  further  than  is  necessary  to  do 
justice  in  the  cause  on  trial.  In  an  action  between 
private  individuals  it  has  no  power  to  make  rules  for 
the  benefit  of  the  State  at  large.  It  has  no  more 
warrant  to  deal  generally  with  questions  of  public 
morals  than  it  has  with  the  regulations  of  public 
finance.  The  community  at  large  are  not  before  it. 

135 


ARGUMENT 

It  has  no  jurisdiction  over  their  concerns.  To  make 
regulations  for  the  benefit  of  the  public  is  not  the 
function  of  a  judge.  Such  regulations  are  laws,  not 
judgments. 

Whence  does  the  court  derive  the  extraordinary 
power  set  up  here?  When,  I  ask,  have  the  people 
constituted  their  judges  the  guardians  of  morality 
at  large  ?  When  have  they  appointed  them  censors, 
clothed  with  power  to  determine,  a  priori,  what  lit 
erature  is  wholesome  and  what  noxious  to  the 
community?  When  have  they  surrendered  into 
their  hands  the  custody  of  the  liberty  of  speech  or 
of  the  press,  vouchsafed  in  England  only  after  a 
struggle  of  centuries  against  arbitrary  rulers,  and 
erected  here  from  the  first  dawn  of  government  as 
the  main  pillar  of  the  temple  of  American  com 
monwealths, — when,  I  say,  have  the  people  sur 
rendered  that  liberty  into  the  hands  of  judges,  and 
given  them  the  right  to  decide  beforehand  that  there 
are  subjects  which  the  people  may  not  read  of,  and 
may  not  even  discuss? 

The  claim  made  by  the  court  below  is  of  the 
most  extraordinary  and  startling  character.  It 
assumes  not  only  to  paralyze  the  pen  and  stop  the 
press,  but  also  to  seal  the  lips  and  stifle  the  utter 
ances  of  the  community.  Its  order,  as  given  in 
the  affidavit,  is  that  "  no  public  or  other  report  or 
publication  of  any  character  of  the  testimony  in 
said  cause  be  made."  Under  this  order  no  man 
may  repeat  the  evidence,  either  in  private  or  in 

136 


IN  RE  SHORTRIDGE 

public.  He  may  not  only  not  disseminate  it  in 
print, —  he  must  not  even  confide  it  to  the  sanctity 
of  a  private  correspondence  or  whisper  it  in  the 
most  confidential  conversation.  But  this  is  not  all. 
No  limits  are  set  for  the  duration  of  this  order.  It 
is  to  continue  in  force  for  all  time.  The  secrecy 
imposed  is  eternal.  The  silence  enjoined  is  the 
silence  of  the  tomb.  An  unfortunate  wife  who, 
falling  a  victim  to  the  perjury  of  suborned  witnesses 
or  a  corrupted  jury, — such  things  have  happened, — 
has  been  unjustly  found  guilty  of  infidelity  may  not 
appeal  for  a  reversal  to  the  tribunal  of  public 
opinion.  She  may  not  outside  of  court  raise  her 
voice  or  wield  her  pen  in  her  own  defense.  She 
may  not  only  not  interpose  against  the  weight  of 
infamy  which  crushes  her  in  the  mire  the  disclosure 
of  the  villainy  of  which  she  is  the  victim,  but  even 
in  the  presence  of  mother,  sister,  or  friend,  her 
heart  must  burst  under  the  burden  of  the  repressed 
vindication  which  struggles  in  vain  for  utterance. 
She  must  walk  the  rest  of  life's  journey  and  go 
down  to  the  grave  in  silence. 

Is  an  order  fraught  with  such  fearful  consequences 
the  order  of  a  judge  made  in  this,  the  second 
century  of  American  Independence,  or  is  it  the 
decree  of  an  inquisitor,  formulated  in  days  when 
the  victims  of  fanaticism  were  burnt  at  the  stake, 
and  their  writings  thrown  into  the  flames  by  the 
executioner? 

It  is  unnecessary  to  pursue  the  subject  further.    It 

137 

j 


ARGUMENT 

must  be  apparent  that,  under  the  plea  of  protection 
of  public  morals,  the  Superior  Court  of  Santa 
Clara  County  had  no  more  right  to  prevent  the 
public  from  reading  the  testimony  in  the  case  of 
Price  vs.  Price  than  it  had  to  forbid  their  perusing 
the  memoirs  of  Casanova  or  the  tales  of  the 
Decameron. 

Whether,  therefore,  the  petitioner  acted  illegally 
in  making  the  publication  in  question  is  determina- 
ble  by  the  law,  and  not  by  the  order  of  the  court. 
If  the  law,  under  the  circumstances  stated,  pro 
hibited  the  publication,  the  order  of  the  court  was 
superfluous,  and  the  petitioner  is  censurable  regard 
less  of  that  order,  for  the  all-sufficient  reason  that 
he  has  violated  the  law.  If,  on  the  other  hand,  the 
law  did  not,  under  the  circumstances,  prohibit  the 
publication,  the  petitioner  had  the  right,  under 
the  law,  to  make  it,  and  that  right  could  not  be 
abridged  or  taken  away  by  an  order  made,  without 
giving  him  a  hearing,  by  a  court  which  had  no  juris 
diction  over  him.  It  would  be  a  violation  of  the 
plainest  and  most  fundamental  principles  of  our 
form  of  government,  and  would  constitute  a  most 
intolerable  despotism,  to  have  it  established  that  the 
conduct  of  the  community  may  be  regulated  by 
the  ex  parte  orders  of  a  court,  or  that  persons  must 
guide  their  course  of  life  not  by  the  rules  which  the 
law  of  the  land  lays  down,  but  by  such  orders  as 
the  judiciary  may  in  secret  make.  The  disobedience 
of  such  orders  is  no  offense.  Nay,  it  is  deserving 

138 


IN  RE  SHORTRIDGE 

of  the  highest  commendation.  Resistance  to  illegal 
usurpation  of  authority  is  none  the  less  the  right 
and  the  duty  of  a  citizen  because  the  usurpation  is 
made  by  the  judiciary, —  else  were  the  dearest  rights 
which  organized  governments  are  instituted  to  pro 
tect  held  at  the  mercy  of  the  whim  or  caprice  of 
every  accidental  incumbent  of  the  bench. 

If  the  first  proposition  which  I  have  sought  to 
establish  is  true, — that  the  publication  in  question 
did  not  and  could  not  interfere  with  the  proper  dis 
charge  by  the  court  of  the  powers  and  duties  con 
ferred  upon  it;  that  there  is  no  charge  that  it 
interfered  with  the  proceedings  of  the  trial,  and  that 
it  was,  therefore,  within  the  proper  limits  of  the 
liberty  of  the  press, —  Mr.  Shortridge  had  a  con 
stitutional  right  to  make  that  publication,  and  that 
right  was  not  lost  to  him  by  reason  of  the  order 
forbidding  its  exercise. 

It  is  claimed,  in  fine,  that  the  case  of  Price  vs. 
Price  was  an  action  for  divorce  ;  that  the  law  author 
izes  the  court  to  order  such  an  action  to  be  tried  in 
private,  excluding  from  the  court-room  all  persons 
except  the  parties,  their  counsel,  and  their  witnesses  ; 
that  in  this  case  the  court  made  such  an  order,  and 
the  trial  proceeded  with  closed  doors.  It  is  insisted 
that  these  facts  amounted  in  law  to  an  injunction 
of  perpetual  secrecy,  and  consequently  operated  as  a 
prohibition  of  the  publication  of  the  proceedings 
of  the  trial, — in  other  words,  that,  under  these  cir 
cumstances,  the  law  itself  prohibited  the  publication. 

139 


ARGUMENT 

This  claim  is  made  under  section   125  of  the  Code 
of  Civil  Procedure.    The  section  is  in  these  words  : — 

"  In  an  action  for  divorce,  criminal  conversation, 
seduction,  or  breach  of  promise  of  marriage,  the 
court  may  direct  the  trial  of  any  issue  of  fact  joined 
therein  to  be  private,  and  may  exclude  all  persons 
except  the  officers  of  the  court,  the  parties,  their 
witnesses  and  counsel;  provided,  that  in  any  cause 
the  court  may,  in  the  exercise  of  a  sound  discretion, 
during  the  examination  of  a  witness,  exclude  any 
or  all  other  witnesses  in  the  cause." 

Was  this  section  intended  to  enjoin  absolute 
secrecy,  and  to  exclude  the  public  from  all  knowl 
edge  of  the  proceedings  of  a  trial  had  with  closed 
doors  ?  and  if  it  was,  is  it  in  that  regard  constitu 
tional  ?  These  questions  deserve  consideration. 

That  in  a  free  country  the  administration  of  jus 
tice  is  a  matter  of  public  concern,  and  that  the 
people  have  a  deep  interest  in  the  conduct,  actions, 
and  decisions  of  their  judges,  and  a  right  to  be 
informed  and  know  what  is  done  in  their  courts,  are 
propositions  not  open  to  doubt.  Were  judicial 
precedents  needed  in  their  support,  no  long  search 
would  be  necessary  to  find  them.  Under  the  law, 
the  publication  of  a  truthful  report  of  judicial 
proceedings  is  privileged ;  and  however  severely  and 
unjustly  the  publication  may  reflect  upon  private 
individuals,  it  is  no  libel.  Why  is  this  so  ?  Why 
must  the  private  injury  remain  under  these  circum 
stances  unredressed  ?  The  answer  is  given  in  the 

140 


IN  RE  SHORTRIDGE 

language  of  the  judges  of  England,  who  had  estab 
lished  the  doctrine  upon  common-law  principles 
long  before  we  copied  and  incorporated  it  into  our 
statute-book.  In  1799,  in  the  case  of  Rex  vs. 
Wright,  Lawrence,  J.,  said : — 

"  Though  the  publication  of  such  proceedings  may 
be  to  the  disadvantage  of  the  particular  individual 
concerned,  yet  it  is  of  vast  importance  to  the  public 
that  the  proceedings  of  courts  of  justice  should  be 
universally  known.  The  general  advantage  to  the 
country  in  having  these  proceedings  made  public 
more  than  counterbalances  the  inconvenience  to  the 
private  persons  whose  conduct  may  be  impugned."* 

In  Davison  vs.  Duncan,  decided  by  the  Queen's 
Bench  in  1857,  Lord  Campbell,  Chief  Justice  of 
England,  said : — 

"  A  fair  account  of  what  takes  place  in  a  court  of 
justice  is  privileged.  The  reason  is  that  the  balance 
of  public  benefit  from  publicity  is  great.  It  is  of 
great  consequence  that  the  public  should  know  what 
takes  place  in  court.  .  .  .  The  inconvenience, 
therefore,  arising  from  the  chances  of  the  injury  to 
private  character  is  infinitcsimally  small  as  compared 
to  the  convenience  of  publicity. "f 

And  in  1868,  another  Chief  Justice  of  England, 
Lord  Cockburn,  in  Wason  vs.  Walter,  said : — 

"  The  advantage  to  the  community  from  publicity 
being  given  to  the  proceedings  of  courts  of  justice  is 
so  great  that  the  occasional  inconvenience  to  indi- 

*  8  T.  R.  t  7  E.  &  B. 

141 


ARGUMENT 

viduals    arising   from    it  must  yield    to  the    general 
good."* 

This  is  the  language  of  grave  and  learned  judges, 
giving  voice  to  a  fundamental  principle  of  the  com 
mon  law  of  England.  But  why,  it  may  be  asked, 
is  it  of  vast  importance  to  the  public  that  the  pro 
ceedings  of  courts  of  justice  should  be  universally 
known  ?  I  answer  again,  in  the  language  of  another 
distinguished  judge,  the  Chief  Baron  of  the  Court 
of  Exchequer,  in  the  case  of  Gathercole  vs.  Meall,^ 
because  the  "conduct  of  judges  and  proceedings 
of  all  persons  who  are  responsible  to  the  public  at 
large  are  deemed  to  be  public  property,"  and  in  that 
of  Lord  Cockburn,  in  the  case  already  cited,  be 
cause  "the  nation  profits  by  public  opinion  being 
thus  freely  brought  to  bear  on  the  discharge  of 
public  duties." 

If  these  doctrines  are  recognized  in  England, 
how  much  more  true  are  they  in  commonwealths 
where  all  power,  judicial  as  well  as  executive  or  legis 
lative,  is  derived  directly  from  the  people  !  If  the 
conduct  of  English  judges  appointed  by  the  crown 
is  confessedly  public  property,  and  the  discharge  of 
their  functions  is  a  matter  upon  which  it  is  of  profit 
to  the  nation  that  public  opinion  should  be  freely 
brought  to  bear,  how  much  more  are  these  truths 
applicable  to  the  judges  of  an  American  State,  who 
are  elected  for  limited  terms  by  the  people  !  In 


L.  R.,  4  Q^  B.  t  15  M.  &  W. 

142 


IN  RE  SHORTRIDGE 

England  the  monarch  is  the  fountain  of  justice ;  the 
judges  are  his  ministers,  appointed  to  assist  him  in 
the  discharge  of  his  duty  to  dispense  justice  among 
his  subjects.  In  our  commonwealths  the  administra 
tion  of  justice  is  the  sovereign  right  of  the  people. 
The  power  of  courts  is  held  by  direct  delegation  of 
the  people.  The  judges  are  but  the  servants  of  the 
sovereign,  invested  with  power  to  deal  out  justice 
according  to  the  people's  behests,  expressed  in  their 
constitutions  and  laws, — to  dispense  the  people's 
justice  according  to  the  people's  commands.  That 
the  people  should  be  excluded  from  all  knowledge 
of  the  manner  in  which  their  judges  discharge  the 
functions  with  which  they  are  clothed,  presents  the 
anomaly  of  excluding  the  master  from  knowledge 
of  the  manner  in  which  the  servant  does  the  mas 
ter's  work. 

In  the  early  days  of  the  English  monarchy,  the 
king  himself  sat  in  his  own  hall,  and,  in  proper  per 
son,  exercised  his  royal  prerogative  of  dispensing 
justice.  As  the  law  became  a  complex  science, 
demanding  special  study  for  its  understanding  and 
application,  the  exercise  of  this  royal  prerogative 
was  in  practice  abandoned,  and  the  administration  of 
justice  was  left  entirely  to  the  judges.  Still  was 
the  king,  in  the  eye  of  the  law,  always  present  in  his 
own  court,  and  the  writs  issued  from  the  King's 
Bench  were  returnable  before  the  king  himself.  To 
deny  the  king  information  of  what  is  being  done 
in  a  court  in  which  he  is  presumed  to  be  always 

143 


ARGUMENT 

present  would  offer  no  greater  anomaly  than  to 
deny  the  same  information  to  the  sovereign  people 
of  an  American  commonwealth. 

To  recognize  the  right  of  withholding  from  the 
public  information  of  the  proceedings  of  courts  of 
justice  would  be  to  roll  back  the  tide  of  history  for 
centuries,  and  to  surrender  the  ground  which  the 
advancing  spirit  of  popular  liberty  has  conquered 
from  the  arbitrary  and  despotic  encroachments  of 
governments.  As  said  by  Chief  Justice  Cockburn, 
in  the  case  already  cited,  "  the  recognition  of  the 
right  to  publish  the  proceedings  of  courts  of  justice 
has  been  of  modern  growth.  Till  a  comparatively 
recent  time,  the  sanction  of  the  judges  was  thought 
necessary,  even  for  the  publication  of  the  decisions 
of  the  courts  upon  points  of  law."  Blackstone, 
writing  less  than  a  century  and  a  half  ago,  lays  it 
down  as  the  law  of  England  at  his  day,  that  it  was 
unlawful  and  a  contempt  of  court  to  print  "  false 
accounts — or  even  true  ones,  without  proper  per 
mission — of  causes  then  dependent  in  judgment."* 

This  claim  on  the  part  of  the  judges  was  coeval 
with  a  similar  claim  on  the  part  of  the  Houses  of 
Parliament  to  prohibit  the  publication  of  their 
debates ;  and  both  were  overthrown  but  a  few  years 
before  the  Revolution  of  the  American  Colonies, 
after  the  memorable  contest  between  the  House  of 
Commons  and  the  printers,  in  the  days  of  John 
Wilkes.  A  century  and  a  half  ago  in  England,  the 

*  4  Bl.  Com.  285. 
144 


IN  RE  SHORTRIDGE 

Parliament  and  the  courts  undoubtedly  claimed  and 
exercised  the  right  to  prohibit  the  publication  of 
their  proceedings.  The  law  there  has  not  been 
formally  changed.  As  to  the  courts,  no  statute  has 
been  passed  altering  the  common  law;  and  there  is 
still  a  standing  order  in  the  journals  of  both  Houses 
of  Parliament  prohibiting,  even  at  this  day,  the 
publication  of  their  debates.  The  enforcement  of 
the  claim  has  been  paralyzed  by  the  spirit  of  liberty 
and  the  force  of  public  opinion.  The  Parliament 
which  should  undertake  to-day  to  punish  as  a  con 
tempt  the  publication  of  its  debates  would  be 
crushed  under  the  weight  of  universal  derision ;  and 
the  judge  who  should  attempt  to  withhold  his 
decisions  from  the  public  would,  if  not  held  de 
mented,  certainly  incur  the  risk  of  impeachment. 

If  the  people  have  an  inherent  sovereign  right  to 
be  informed  of  the  proceedings  of  their  own  courts 
of  justice,  any  attempt  on  the  part  of  the  Legisla 
ture,  directly  or  indirectly  through  a  judge,  to 
deprive  them  of  that  right  must  be  void.  Secrecy 
in  judicial  proceedings  is  not  only  opposed  to  the 
true  interests  both  of  the  courts  and  the  people,  but 
is  repugnant  to  the  whole  spirit  of  American  institu 
tions  and  to  the  sentiments  of  a  free  people.  The 
idea  suggested  by  Star  Chamber  proceedings  brings 
the  mind  back  to  the  darkest  epochs  of  tyranny  and 
the  times  when  a  pliant,  pusillanimous,  and  venal 
judiciary  carried  out  in  secret  the  behests  of  despotic 
monarchs. 

145 


ARGUMENT 

It  is  not  conceivable  that  the  people  of  this  State, 
in  framing  their  government,  ever  contemplated 
that  the  Legislature  should  have  the  power  to  enact 
laws  the  enforcement  of  which  would  lead  to  with 
holding  from  the  public  information  of  the  pro 
ceedings  of  courts  of  justice. 

By  the  Declaration  of  Rights,  which  is  part  of 
the  Constitution  of  1849,  *  and  of  that  of  1879,")* 
there  was  guaranteed  to  every  citizen  of  the  State 
the  right  freely  to  speak,  write,  and  publish  his 
sentiments  on  all  subjects.  In  view  of  this  declara 
tion,  will  it  be  claimed  that  it  was  ever  contem 
plated  that  the  proceedings  of  courts  of  justice  and 
the  decisions  and  conduct  of  judges  should  be 
withdrawn  from  public  discussion,  and  should  con 
stitute  subjects  upon  which  the  people  should  have 
no  right  to  speak,  write,  or  publish  their  senti 
ments  ?  If  it  was  not  intended  that  these  subjects 
should  be  withdrawn  from  public  discussion,  will  it 
be  claimed  that  it  was  ever  contemplated  that  such 
proceedings,  decisions,  and  conduct  should  be  kept 
secret,  and  all  information  and  knowledge  con 
cerning  them,  which  alone  could  afford  the  basis  for 
the  formation  of  an  intelligent  opinion,  should  be 
withheld  from  the  people  ? 

The  reasons  for  imparting  to  the  community  this 
information  and  knowledge  are  of  the  most  cogent 
character.  The  judiciary  are  with  us  elected  for 

*  Const.  1849,  art-  !•>  sec>  9' 
t  Const.  1879,  art-  !•»  sec'  9' 
146 


IN  RE  SHORTRIDGE 

stated  terms,  at  the  end  of  which  the  people  are 
periodically  called  upon  to  set  the  seal  of  their 
approbation  or  disapprobation  upon  the  past  per 
formance  of  their  judges,  by  re-electing  or  rejecting 
them.  The  only  guide  for  the  proper  exercise  of 
this  right  is  a  knowledge  of  the  conduct  of  the 
judges  during  their  incumbency  of  the  bench. 
What  greater  folly  could  be  imagined  than  to 
exclude  the  people  from  that  knowledge,  by  draw 
ing  the  veil  of  secrecy  over  the  performance  of 
judicial  functions  ?  In  this  condition  of  ignorance, 
not  only  would  the  people  be  bereft  of  one  of 
their  most  important  rights,  but  the  judiciary  itself 
would  be  the  first  to  suffer ;  for  while  an  unworthy 
judge  might  thus  be  able  to  escape  censure  for 
neglect  or  violation  of  duty,  a  deserving  one  could 
never  be  assured  of  the  approbation  or  reward 
which  should  attend  the  proper  discharge  of  public 
office. 

There  are  still  further  reasons  which  protest 
against  the  secrecy  of  judicial  proceedings.  In 
discharging  their  functions  courts  not  infrequently 
discover  imperfections  in  the  laws  which  they  inter 
pret.  The  defects  thus  perceived  it  is  to  the 
interest  of  the  State  to  remedy.  An  injunction  of 
secrecy  upon  the  proceedings  of  courts  would 
deprive  the  lawmaker  of  the  knowledge  of  these 
defects,  and  condemn  the  laws  to  a  state  of  irreme 
diable  and  perpetual  imperfectness.  Did  the  people 
in  framing  our  government  ever  contemplate  such 

147 


ARGUMENT 

a  result  ?  Furthermore,  laws  are  in  their  operation 
what  the  judiciary  declare  them  to  be.  The  inter 
pretation  of  judges  is  not  seldom  widely  different 
from  that  which  laymen,  from  a  reading  of  the  law, 
adopt.  Yet  the  community  must  live  and  shape 
its  conduct  according  to  the  laws  as  interpreted  by 
the  judges.  How  shall  it  do  so  if  it  is  excluded 
from  all  knowledge  of  judicial  proceedings  ? 

That  the  people  never  meant  that  what  takes 
place  in  their  courts  should  be  kept  secret  is  mani 
fest  upon  the  face  of  the  Constitution  itself.  It  is 
provided  by  section  2  of  article  VI.  that  in  the 
determination  of  causes  all  decisions  of  the  Supreme 
Court,  in  bane  or  in  department,  shall  be  in 
writing,  and  the  grounds  of  the  decisions  shall  be 
stated,  and  by  section  16  of  the  same  article,  that 
all  opinions  shall  be  free  for  publication  by  any 
person.  It  is  true  that  by  their  language  these 
provisions  apply  to  the  Supreme  Court  only ;  but 
can  it  for  a  moment  be  imagined  that,  while  explicit 
provision  was  made  for  absolute  publicity  of  the 
decisions  of  that  court,  it  was  intended  that  the 
proceedings  of  inferior  tribunals  might  remain 
shrouded  in  secrecy  ?  Vain  and  puerile  would  be 
the  effort  to  withdraw  from  public  gaze  the  pro 
ceedings  of  inferior  courts  if  the  decisions  and 
judgments  of  the  ultimate  appellate  tribunal  are,  by 
express  command  of  the  Constitution,  public  prop 
erty.  What  could  be  gained  by  forbidding  the 
publication  of  the  proceedings  had  on  the  trial  of  a 

148 


IN  RE  SHORTRIDGE 

cause  in  a  Superior  Court  if  everybody  is  at  liberty 
to  publish  the  decision  in  the  same  case  on  appeal, 
which  may  review  and  embody  the  whole  of  those 
proceedings  ? 

The  subject  may  be  viewed  from  another  stand 
point.  The  Constitution,  both  of  1849  and  of 
1879,*  declares  that  no  law  shall  be  passed  to 
restrain  or  abridge  the  liberty  of  speech  or  of  the 
press.  The  liberty  of  speech  or  of  the  press,  as  I 
have  already  endeavored  to  show,  is  the  liberty  to 
say  or  print  whatever  one  may  choose,  short  of 
interfering  with  the  rights  of  others  or  giving 
offense  to  public  decency  or  morality.  If  this  is 
not  what  is  meant  by  this  section,  it  would  be 
difficult  to  conceive  what  is  that  liberty  which  the 
framers  of  the  Constitution  have  been  at  such 
pains  to  consecrate  and  declare  inviolate  from  all 
attempted  restraints  or  abridgments  by  the  law- 
making  power.  Any  law  declaring  illegal  utter 
ances  or  writings  which  do  not  so  interfere  or 
offend  would  be  abridging  and  restraining  the  right 
of  speech  or  of  the  press  within  narrower  bounds 
than  those  prescribed  by  the  Constitution.  To  say 
that  it  shall  be  unlawful  for  any  citizen  to  speak  of 
or  publish  the  proceedings  of  courts  of  justice  is  to 
condemn  such  utterances  or  publications  before 
hand,  regardless  of  the  fact  whether  they  do  or  do 
not  interfere  with  the  rights  of  others  or  offend 
public  morality  or  decency.  Concede  the  power 

*  Art.  I.,  sec.  9. 
149 


ARGUMENT 

to  make  such  an  enactment,  and  the  liberty  of 
speech  and  of  the  press  is  gone  forever.  If  the 
proceedings  of  courts  may  be  thus  withdrawn  from 
public  discussion,  so  may  those  of  the  Senate, 
of  the  Assembly,  of  boards  of  supervisors,  of 
city  councils,  of  town  trustees,  and  of  all  other 
public  bodies.  Nor,  if  the  power  to  pass  such  a 
statute  be  admitted,  need  the  Legislature  stop 
here, — for  there  is  no  conceivable  subject  upon 
which  it  may  not  declare  it  unlawful  to  speak  or 
write. 

That  the  Legislature  may  within  constitutional 
limits  pass  laws  to  define  and  punish  the  abuse  of 
the  liberty  of  speech  or  of  the  press,  I  do  not  ques 
tion  ;  but  that  it  can  say  beforehand  that  a  certain 
utterance  which  may  be  made  or  a  certain  writing 
which  may  be  published  in  the  future  is  if  so  facto 
illegal  I  deny.  That  it  can  enact  that  libels  of 
persons  in  office,  as,  for  instance,  the  Governor  or 
the  judges  of  the  Supreme  Court,  shall  be  punished 
is  clear;  but  that  it  can  say  that  it  shall  be  a  libel  to 
speak  or  write  about  the  conduct  of  the  Governor 
of  the  State  or  the  judges  of  the  Supreme  Court  I 
deny.  Whether  words  which  I  have  uttered  or 
written  constitute  slander  or  libel,  and  are  therefore 
an  abuse  of  my  liberty,  is  a  question  upon  which  I 
have  a  right  to  be  heard  when  called  upon  to  answer 
for  them;  but  to  say  beforehand  that  what  I  shall 
utter  to-morrow  upon  a  given  subject  will  be  a 
slander  or  a  libel  is  to  condemn  me  unheard.  If  I 

150 


IN  RE  SHORTRIDGE 

have  a  constitutional  right  to  speak,  write,  and  pub 
lish  my  sentiments  upon  all  subjects,  and  the  Legis 
lature  is  not  permitted  to  restrain  or  abridge  that 
right,  a  statute  which  forbids  my  speaking,  writing, 
or  publishing  on  a  particular  subject — for  instance, 
the  proceedings  of  courts  or  the  conduct  or  decisions 
of  judges  —  is  an  unconstitutional  restraint  and 
abridgment  of  my  right. 

Nor  can  this  conclusion  be  eluded  by  claiming 
that  the  Legislature  may  exercise  the  power  when, 
according  to  its  wisdom,  the  public  can  be  bene 
fited  thereby.  This  would  leave  the  boundaries  of 
action  wholly  at  the  discretion  of  the  Legislature, 
and  would  be  equivalent  to  saying  that  it  might 
exercise  the  power  in  all  cases  if  it  chose.  If  the 
Legislature  has  the  right  to  prevent  the  people  from 
discussing  or  being  informed  of  the  proceedings  in 
cases  of  seduction,  criminal  conversation,  breach  of 
promise  of  marriage,  and  divorce,  it  has  an  equal 
right  of  prevention  in  all  cases.  If  it  may  do  it  in 
one,  it  may  in  all.  The  Constitution  denies  the 
existence  of  the  power  in  every  case. 

But  it  is  not  to  be  assumed  without  the  most 
cogent  proof  that  the  Legislature  ever  undertook  to 
exercise  such  a  power.  No  such  evidence  is  found, 
I  submit,  in  section  125  of  the  Code  of  Civil  Pro 
cedure.  On  the  contrary,  the  reverse  is  apparent. 
Had  the  Legislature  intended  by  that  section  to 
prohibit,  or  to  authorize  the  courts  to  prohibit,  the 
publication  of  proceedings  of  cases  tried  in  private, 


ARGUMENT 

it  would  have  been  easy  to  say  so  in  plain  terms, 
and  it  would  have  said  so.  It  would  not  have  left 
to  intendment  and  inference  the  task  of  discovering 
its  purpose.  Its  silence  is  the  most  significant 
proof  that  no  such  intent  existed. 

The  learned  Superior  Court  decides  that  to  per 
mit  the  publication  of  proceedings  in  divorce  cases 
tried  with  closed  doors  is  to  frustrate  the  whole 
object  which  the  Legislature  had  in  view  in  enacting 
that  section  of  the  code.  This  decision  has  for  its 
basis  the  assumption  that  the  sole  object  of  that 
section  is  to  insure  the  absolute  secrecy  of  such 
trials,  to  the  end  that  the  public  may  be  protected 
from  the  contamination  of  the  evidence  not  infre 
quently  given  in  such  cases. 

As  the  basis  of  this  argument  consists  in  ascrib 
ing  to  the  Legislature  an  intent  to  deny  the  people 
the  right  to  know  what  is  going  on  in  their  own 
courts,  it  should  not  be  assumed,  but  demonstrated. 
I  deny  the  assumption.  I  say  that  the  sole  pur 
pose  of  the  enactment  is  to  regulate  the  mode  of 
trial  in  court,  and  not  the  divulgement  of  the  pro 
ceedings  outside, — to  protect  the  rights  of  the  parties 
litigant,  and  not  diminish  the  inherent  privileges  and 
liberties  of  the  public. 

The  object  of  such  an  enactment  is  not  difficult 
to  conceive.  In  cases  of  seduction  and  criminal 
conversation  the  relation  of  the  sexes  always  forms 
the  main  topic  of  the  investigation,  whilst  in  cases 
of  divorce  and  breach  of  promise  of  marriage  it  is 

152 


IN  RE  SHORTRIDGE 

not  infrequently  involved  in  the  issue.  The  wit 
nesses  forced  to  testify  on  this  subject  are  often 
females  of  modest  demeanor  and  delicate  sensibili 
ties.  To  call  upon  them  to  reveal  in  the  presence 
of  a  crowded  assemblage  affronts  to  their  chastity, 
the  violation  of  their  own  persons,  or  the  coarse 
and  vulgar  epithets  of  conversations  which  they 
may  have  heard,  would  often  impose  a  task  beyond 
their  strength.  Modesty  would  seal  the  lips  from 
which  truth  would  in  vain  struggle  to  issue.  The 
conflict  between  the  efforts  of  the  court  to  enforce 
its  authority  by  compelling  utterance  and  a  witness 
whose  tongue  is  paralyzed  by  terror  and  shame 
could  not  but  be  most  painful.  From  this  conflict 
there  must  inevitably  ensue  either  a  defeat,  or,  at 
least,  a  great  embarrassment,  of  the  administration 
of  justice.  I  conceive  that  it  is  with  a  view  to 
obviate  these  difficulties,  by  the  exclusion  of  the 
audience  from  the  court-room,  that  the  section 
under  consideration  was  enacted. 

But  it  is  said  that  the  intention  of  the  Legislature 
to  prohibit  the  publication  of  the  proceedings  in 
actions  for  divorce  is  manifest  from  the  provisions 
of  section  1032  of  the  Political  Code.  That  section 
provides  that  in  all  actions  for  divorce  the  pleadings 
and  the  testimony  taken  and  filed  in  said  actions 
shall  not  be  made  public  by  the  clerk  with  whom 
the  same  are  filed  or  the  referee  before  whom  the 
testimony  is  taken ;  nor  shall  the  same  be  allowed 
to  be  inspected  by  any  person  except  the  parties 

153 


ARGUMENT 

that  may  be  interested  or  the  attorneys  to  the 
action,  or  by  an  order  of  the  court  in  which  the 
action  is  pending. 

If  it  was  intended  by  this  section  to  prohibit  the 
publication  of  the  testimony  in  actions  for  divorce, 
why  is  it  not  so  stated  in  plain  terms?  The  failure 
so  to  state  is  the  most  conclusive  evidence  that  no 
such  intention  existed. 

That  the  Legislature  did  not  purpose  by  this 
section  of  the  Political  Code,  or  by  section  125  of 
the  Code  of  Civil  Procedure,  to  insure  the  secrecy 
of  the  proceedings  in  actions  for  divorce  is  manifest 
from  other  provisions  of  the  Constitution  and  the 
law.  The  defeated  party  in  such  an  action  may 
appeal  to  the  Supreme  Court,  and  file  with  its  clerk 
a  transcript,  containing,  it  may  be,  the  whole  of  the 
proceedings,  the  testimony  included,  of  the  lower 
court.  The  moment  this  is  done  the  transcript 
becomes,  by  virtue  of  section  1032  of  the  Political 
Code,  a  public  record,  open  at  all  times  to  the 
inspection  of  any  citizen  of  the  State.  Besides, 
there  is  no  provision  in  the  law  that  the  hearing  of 
the  appeal  shall  be  had  in  private;  on  the  contrary, 
by  express  constitutional  requirement,  *  the  court 
"  is  always  open  for  the  transaction  of  business." 
Nor  is  there  any  provision  that  the  printed  argu 
ments  of  counsel,  which  may  set  forth  the  whole 
case,  shall  be  kept  secret.  And,  lastly,  the  appellate 
court  in  deciding  the  case  is  obliged  under  the 

*  Const.,  art.  VI.,  sec.  2. 
154 


IN  RE  SHORTRIDGE 

Constitution  to  render  its  decision  and  the  reasons 
of  its  conclusions  in  writing.*  This  decision  may 
embody  and  discuss  the  whole  of  the  proceedings, 
including  the  testimony.  The  moment  this  de 
cision  is  filed  it  is  public  property,  and  any  one 
has  the  absolute  constitutional  right  to  publish  it.  f 
How  utterly  vain,  then,  must  be  all  attempts 
to  enjoin  secrecy  of  the  proceedings  in  actions  for 
divorce ! 

It  is  submitted,  in  fine,  that  none  of  the  sections 
of  the  code  which  have  been  cited  have  for  their 
object  the  prohibition  of  the  publication  of  the 
proceedings  in  cases  of  divorce,  and  that  if  they 
have,  they  are  in  that  respect  unconstitutional. 

I  have  thus  endeavored  to  subject  the  positions 
of  the  court  and  of  my  learned  adversaries  to  the 
test  of  reason  and  fundamental  principles.  I  may 
be  permitted  to  remark  that  if  I  have  referred  to 
no  authorities,  it  is  because  in  such  a  discussion 
precedents  could  afford  little  aid.  I  have  no  doubt 
that  my  learned  friends  opposite  are  ready  with 
precedents  on  their  side.  They  were  cited  in  the 
court  below,  and  may  again  be  here.  Decisions  may 
be  adduced  to  show  that,  at  common  law,  English 
judges  possessed  and  exercised  the  power  to  prohibit 
in  all  cases  the  publication  of  the  proceedings  of 
their  courts.  But  has  American  liberty  made  so 
little  advance  that  its  limits  to-day  must  be  deter 
mined  by  the  precedents  of  a  former  age  and  another 

*  Const.,  art.  VI.,  sec.  2.          fid.,  art.  VI.,  sec.   16. 
155 


ARGUMENT 

country  ?  Granting  that  there  are  such  precedents 
in  England,  has  the  liberty  of  free  utterance  and  a 
free  press  made  no  progress  since  the  days  when  in 
that  realm  the  Church  and  the  State  undertook  to 
prohibit  all  books  which  did  not  receive  their  sanc 
tion  and  license ;  the  days  when  Sir  Thomas  More 
died  upon  the  scaffold  a  martyr  in  the  cause  of  liberty 
of  conscience  ;  the  days  when  Speakers  of  the  House 
of  Commons  went  upon  their  knees  at  the  feet  of  their 
sovereign  to  crave  forgiveness  for  undue  indulgence 
in  the  freedom  of  debate ;  the  days  when  a  member 
was  sent  to  the  Tower  for  daring  to  publish  his 
speeches  in  Parliament,  and  his  book  was  burned 
by  the  public  hangman  ;  the  days  when  Sydney's 
Discourse  upon  the  Principles  of  Government 
brought  him  to  the  block  ;  the  days  when  Mansfield 
— even  Mansfield — prostituted  the  principles  of 
the  law  of  libel  to  serve  a  party  in  power ;  the  days 
when  every  comment  upon  the  ministers  of  the 
crown  was  deemed  a  seditious  utterance ;  the  days 
when  the  eloquence  of  Erskine  was  tasked  to 
its  uttermost  to  avert  the  punishment  of  Stock- 
dale,  and  across  the  Irish  Channel  the  genius 
of  Curran  strove  in  vain  to  save  Rowan  from  the 
pillory  P 

Why  should  we  pause,  then,  curiously  to  trace 
the  course  of  judicial  decisions  of  bygone  genera 
tions  ?  The  stride  of  the  full-grown  man  is  not  to 
be  cramped  into  the  footprints  of  the  child.  The 
flight  of  the  eagle  soaring  above  the  clouds  and 

156 


IN  RE  SHORTRIDGE 

measuring  the  distance  from  mountain  peak  to 
mountain  peak  is  not  to  be  circumscribed  within 
the  bounds  of  the  nest  which  limited  the  first  flut 
tering  of  its  callow  pinions.  We  are  dealing  here 
with  a  question  of  liberty  under  our  Constitution 
and  form  of  government.  You  cannot  gauge  it  by 
the  rules  of  an  age  when  constitutions  were  un 
known  and  personal  liberty  was  a  delusion.  The 
light  which  is  to  guide  your  footsteps  is  not  the 
light  of  the  past,  but  of  the  present.  Vain  would 
be  all  attempt  to  ignore  it.  You  might  as  well  bid 
the  commander  who  by  the  search-light  at  his  mast 
head  steers  the  stately  ironclad  through  the  darkness, 
and  with  the  rapidity  of  thought  throws  a  dazzling 
splendor  upon  the  outermost  bound  of  the  horizon, 
discard  the  lightning  which  he  has  torn  from  the 
clouds  and  trace  his  course  by  the  rays  of  the  pine 
torch  with  which  the  Indian  guides  his  canoe  through 
the  rapids  of  the  Truckee  ;  you  might  as  well  bid 
the  astronomer  who  from  the  heights  of  Hamilton 
scans  the  heavens,  explores  the  configuration  of  the 
planets,  determines  the  composition  and  measures 
the  distance  of  the  stars,  throw  aside  the  glass  which 
the  genius  of  modern  science  has  given  him  and 
take  up  instead  the  rude  instrument  with  which, 
before  the  birth*  of  Christ,  Egyptian  priests  or  Chal 
dean  shepherds  watched  Orion  and  the  Pleiades,  as 
tell  us  that,  standing  to-day  upon  the  threshold  of 
the  twentieth  century,  we  are  to  shut  our  eyes  to 
the  effulgence  which  the  spirit  of  liberty  throws 

157 


ARGUMENT 


around  us,  and  guide  our  footsteps  by  the  lamp  of 
the  dead  past,  snatched  from  the  charnel-house 
where  the  forgotten  judges  of  Plantagenet,  or  Tudor, 
or  Stuart  dynasties  lie  buried. 


158 


TO    THE    SUPREME    COURT    OF   THE 
UNITED    STATES 


THE  following  argument  was  made  in  the  Supreme  Court  of 
the  United  States  on  the  26th  day  of  January,  1885.  The  case 
is  reported  in  118  Wall.,  p.  394.  Though  the  Court  avoided, 
at  that  time,  a  decision  of  the  important  constitutional  questions 
discussed,  the  views  here  presented  by  Mr.  Delmas  ultimately 
prevailed ;  and,  after  a  contest  extending  over  a  period  of  thirteen 
years,  — 1882  to  1895, — the  railroad  companies  were  finally  com 
pelled  to  pay  their  taxes.  The  last  decision  upon  the  subject  is 
that  of  People  vs.  Central  Pacific  R.  R.  Co.,  105  Cal.,  p.  576. 


IN   THE    RAILROAD   TAX   CASES 

MAY  IT  PLEASE  YOUR  HONORS  :  This  litigation 
involves  the  validity  of  the  Constitution  and 
statutes  of  California  relating  to  the  taxation  of 
railroads.  After  a  controversy  covering  a  period 
of  six  years,  the  people  of  that  State  are  now  at 
your  bar,  to  learn  at  last  whether  they  have  any 
laws  by  which  the  vast  property  of  railroad  corpora 
tions  which  receives  the  protection  of  their  gov 
ernment  can  be  made  to  bear  its  share  of  the  public 
burdens,  or  whether  the  scheme  of  taxation  devised 
by  the  framers  of  their  Constitution,  carried  out  by 
their  legislators,  and  approved  by  their  highest 
court  of  law,  is  a  nullity.  They  are  here  to  learn 
not  only  whether  the  vast  sums  of  six  years'  unpaid 
revenue,  for  which  these  corporations  stand  delin 
quent  to  the  State,  must  be  forever  lost  to  the 
treasury,  but,  also,  whether  the  expense,  loss  of 
time,  and  labor  of  reframing  or  amending  their 
Constitution  must  be  assumed  anew. 

That  these  are  grave  questions  no  one,  I  think, 
will  doubt.  That  they  lie  within  a  narrow  com 
pass,  and  that  the  difficulty  of  their  solution  is  not 

161 


ARGUMENT 

commensurate  with  their  magnitude,  it  will  now  be 
my  endeavor  to  demonstrate. 

The  portions  of  the  Constitution  which  the  de 
fendant  attacks  are  sections  i  and  4  of  article 
XIII.  *  The  statute  assailed  is  section  3664  of 
the  Political  Code,  f 

*  These  sections  read  as  follows  :  — 

"Section  I.  All  property  in  the  State,  not  exempt  under  the 
laws  of  the  United  States,  shall  be  taxed  in  proportion  to  its  value, 
to  be  ascertained  as  provided  by  law.  The  word  'property,*  as 
used  in  this  article  and  section,  is  hereby  declared  to  include 
moneys,  credits,  bonds,  stocks,  dues,  franchises,  and  all  other 
matters  and  things,  real,  personal,  and  mixed,  capable  of  private 
ownership. 

"  Section  4.  A  mortgage,  deed  of  trust,  contract,  or  other 
obligation  by  which  a  debt  is  secured,  shall,  for  the  purposes  of 
assessment  and  taxation,  be  deemed  and  treated  as  an  interest  in 
the  property  affected  thereby.  Except  as  to  railroad  and  other 
quasi-public  corporations,  in  case  of  debts  so  secured,  the  value 
of  the  property  affected  by  such  mortgage,  deed  of  trust,  contract, 
or  obligation,  less  the  value  of  such  security,  shall  be  assessed  and 
taxed  to  the  owner  of  the  property,  and  the  value  of  such  security 
shall  be  assessed  and  taxed  to  the  owner  thereof,  in  the  county, 
city,  or  district  in  which  the  property  affected  thereby  is  situate. 
The  taxes  so  levied  shall  be  a  lien  upon  the  property  and  security, 
and  may  be  paid  by  either  party  to  such  security ;  if  paid  by  the 
owner  of  the  security,  the  tax  so  levied  upon  the  property  affected 
thereby  shall  become  a  part  of  the  debt  so  secured  ;  if  the  owner 
of  the  property  shall  pay  the  tax  so  levied  on  such  security,  it 
shall  constitute  a  payment  thereon,  and  to  the  extent  of  such  pay 
ment,  a  full  discharge  thereof.  " 

t  That  section  is  in  these  words  :  — 

"Section  3664.  On  or  before  the  first  Monday  in  May  in 
each  year  the  State  Board  of  Equalization  shall  assess  the  franchise, 

162 


IN   THE    RAILROAD    TAX    CASES 

In  order  to  understand  the  character  ot  the 
attack  upon  this  section,  it  is  necessary  to  observe, 
at  the  outset,  that  section  9  of  article  XIII.  of  the 
Constitution  provides  for  the  election  and  organiza 
tion  of  a  State  Board  of  Equalization.  To  this 
board  is  confided  the  duty  of  assessing  the  fran 
chise,  roadway,  roadbed,  rails,  and  rolling  stock  of 
all  railroads  operated  in  more  than  one  county  in 
the  State.  All  other  property  is  assessed  by  the 
local  assessors  of  each  county.  The  State  Board 
of  Equalization  has  its  office  at  the  State  capital ; 
and  section  3692  of  the  Political  Code  provides 

roadway,  roadbed,  rails,  and  rolling  stock  of  railroads  operated  in 
more  than  one  county.  The  president,  secretary,  cashier,  or 
managing  agent,  or  such  other  officer  as  the  State  Board  of  Equal 
ization  may  designate,  of  any  corporation  operating  any  railway  in 
more  than  one  county  in  this  State,  shall  furnish  said  board,  on  or 
before  the  first  Monday  of  April,  in  each  year,  a  statement,  signed 
and  sworn  to  by  one  of  such  officers,  showing  in  detail  for  the  year 
ending  on  the  first  Monday  in  March,  in  such  year  : — 

"  (rf)  The  whole  number  of  miles  of  railway  owned,  operated, 
or  leased  in  the  State  by  such  corporation,  making  the  return,  and 
the  value  thereof  per  mile,  with  a  detailed  statement  of  all  property 
of  every  kind  located  in  the  State. 

"  (£)  Also  a  detailed  statement  of  the  number  and  value 
thereof  of  engines,  passenger,  mail,  express,  baggage,  freight  and 
other  cars  or  property  used  in  operating  or  repairing  such  railway 
in  this  State,  and  on  railways  which  are  parts  of  lines  extending 
beyond  the  limits  of  this  State.  The  returns  shall  show  the  actual 
amount  of  rolling  stock  in  use  on  the  corporation's  line  in  the  State 
during  the  year  for  which  the  return  is  made.  The  return  shall 
show  the  amount  of  rolling-stock,  the  annual  gross  earnings  of  the 
entire  railway,  and  the  proportionate  annual  gross  earnings  of  the 

163 


ARGUMENT 

that  it  is  "to  hold  regular  meetings  at  the  State 
capital  on  the  second  Monday  in  each  month,  and 
such  special  meetings  as  the  chairman  may  direct/* 
The  validity  of  these  provisions  of  the  Consti 
tution  and  Code  has  been  fully  settled,  so  far  as 
the  State  is  concerned,  by  the  decision  of  the 
Supreme  Court  of  California.  *  Upon  well-estab 
lished  principles,  that  decision  is  binding  upon  this 

same  in  this  State,  as  nearly  as  practicable,  and  all  the  property 
designated  hereafter  in  this  section,  and  such  other  facts  as  the  State 
Board  of  Equalization  may  in  writing  require. 

"  If  such  officer  or  officers  so  designated  shall  fail  to  make  and 
furnish  said  statements,  said  Board  of  Equalization  shall  fix  the 
value  and  proceed  to  assess  the  property  of  the  corporations  so 
failing ;  the  valuation  so  fixed  by  them  shall  be  final  and  conclusive. 
The  said  property  shall  be  assessed  at  its  actual  value.  Assessment 
shall  be  made  upon  the  entire  railway  within  the  State,  and  shall 
include  the  right  of  way,  roadbed,  track,  bridges,  culverts,  and 
rolling  stock.  The  depots,  station  grounds,  shops,  buildings,  and 
gravel  beds  shall  be  assessed  by  the  assessor  of  the  county  where 
situated,  as  other  property.  On  or  before  the  fifteenth  day  of 
May,  in  each  year,  said  board  shall  transmit  to  the  county 
assessor  of  each  county  through  which  any  railway,  operated  in 
more  than  one  county,  may  run,  a  statement  showing  the  length 
of  the  main  track  or  tracks  of  such  railway  within  the  county, 
together  with  a  description  of  the  whole  of  said  tracks  within  the 
county,  including  the  right  of  way  by  metes  and  bounds,  or  other 
description  sufficient  for  identification,  and  the  assessed  value  per 
mile  of  the  same,  as  fixed  by  a  pro  rata  distribution  per  mile  of  the 
assessed  value  of  the  whole  franchise,  roadway,  roadbed,  rails,  and 
rolling  stock  of  such  railway  within  this  State.  Said  statement 
shall  be  entered  on  the  assessment  roll  of  the  county.'* 

*  Central  Pacific  R.  R.  Co.  vs.  the  State  Board  of  Equalization, 
60  Cal.  35. 

164 


IN   THE    RAILROAD    TAX    CASES 

Court  as  to  any  right  claimed  under  the  State 
merely.  As  to  rights  claimed  under  the  Consti 
tution  of  the  United  States,  it  has,  of  course,  no 
authority  here.  Still  it  narrows  the  field  of  inquiry 
to  the  single  question,  Do  these  provisions  of  the 
Constitution  and  Code  of  California  contravene  the 
Federal  Constitution  ? 

The  defendant  claims  that  they  do,  upon  three 
grounds.  Its  contention  is  as  follows: — 

First — The  defendant  is  a  Federal  corporation. 
Its  franchise  is  derived  from  the  Federal  Govern 
ment.  It  is  not,  therefore,  subject  to  State  taxation. 
And  since,  upon  the  face  of  the  assessment  on 
which  the  plaintiff  relies,  the  whole  property  of  the 
corporation  is  assessed  in  gross,  and  the  value  set 
upon  the  franchise  cannot  be  determined  or  sepa 
rately  ascertained,  it  follows  that  the  whole  assess 
ment  fails,  and  the  tax  cannot  be  collected. 

Secondly — Neither  the  Constitution  of  the  State 
nor  its  Code  provides  for  giving  the  defendant 
notice  of  the  assessment  of  its  property,  nor 
opportunity  to  be  heard  therein.  Therefore,  they 
contravene  that  part  of  the  Fourteenth  Amendment 
which  requires  that  no  person  shall  be  deprived  of 
property  without  due  process  of  law. 

Thirdly — The  Constitution,  in  declaring  that  a 
mortgage  shall,  for  the  purposes  of  assessment  and 
taxation,  be  deemed  and  treated  as  an  interest  in  the 
property  affected  thereby,  in  the  case  of  private 
property,  but  not  in  the  case  of  property  of  a  rail- 

165 


ARGUMENT 

road  or  other  quasi-public  corporation,  and  in 
declaring  further  that  in  the  case  of  private  prop 
erty  the  amount  assessed  to  the  owner  shall  be  the 
value  of  the  property  less  the  value  of  the  mortgage 
interest,  but  in  the  case  of  railroad  and  other  quasi- 
public  corporations  the  whole  value  of  the  property 
shall  be  assessed  without  any  deduction  for  the 
mortgage  interest,  violates  that  portion  of  the  Four 
teenth  Amendment  which  provides  that  no  State 
shall  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws. 

This,  I  believe,  is  the  statement  of  defendant's 
positions  in  their  logical  order,  and  in  that  order  I 
shall  now  examine  them. 

The  first  contention  is  met  and  rejected  by  the 
opinion  of  Mr.  Justice  Field,  delivered  in  this  case 
in  the  Circuit  Court.  I  cannot  hope  to  add  any 
thing  to  the  reasoning  of  the  learned  Justice. 

To  the  second  contention,  relating  to  notice  and 
opportunity  to  be  heard  in  the  assessment,  the  late 
decision  of  this  Court  in  the  Kentucky  tax  case 
affords  a  complete  answer. 

The  third  contention,  briefly  stated,  is,  that  our 
Constitution  denies  the  defendant  the  equal  pro 
tection  of  the  laws,  in  that,  whilst  it  permits  the 
deduction  of  the  value  of  the  mortgage  interest  in 
the  assessment  of  private  property,  such  deduction 
is  inhibited  in  the  assessment  of  the  property  of 
railroad  and  other  quasi-public  corporations. 

In  defending  the  provisions  of  our  Constitution, 

166 


IN   THE    RAILROAD    TAX    CASES 

permit  me,  in  the  first  place,  to  reply  to  an  attack 
made  upon  it,  which,  if  tenable,  would  place  the 
organic  law  of  California  in  a  position  ridiculous  in 
the  extreme. 

The  learned  Circuit  Court,  in  examining  the  Con 
stitution,  finds  it,  according  to  its  reading,  to  declare 
in  terms  that  a  mortgage  is  made,  in  all  cases,  for 
purposes  of  taxation,  an  interest  in  the  property 
assessed;  that  this  interest,  which,  by  the  construc 
tion  of  the  Court,  is  declared  to  belong  in  all  cases 
to  the  mortgagee,  must,  nevertheless,  in  the  case  of 
railroad  and  other  quasi-public  corporations,  be 
assessed  to  the  mortgagor.  That  I  may  state  this 
position  aright,  I  must  beg  leave  to  refer  to  the 
record.  There  Mr.  Justice  Field  says : — 

"  It  [the  Constitution]  also  declares  that  a  mort 
gage,  deed  of  trust,  contract,  or  other  obligation  by 
which  a  debt  is  secured  shall,  for  the  purposes  of 
assessment  and  taxation,  be  deemed  and  treated  as 
an  interest  in  the  property  affected  thereby.  And 
that,  except  as  to  railroad  and  other  quasi-public 
corporations,  in  case  of  debts  so  secured,  the  value 
of  the  property  affected  by  such  mortgage,  deed  of 
trust,  contract,  or  obligation,  less  the  value  of  such 
security,  shall  be  assessed  and  taxed  to  the  owner  of 
the  property,  and  the  value  of  such  security  shall  be 
assessed  and  taxed  to  the  owner  thereof.  ...  A 
mortgage,  as  seen  by  the  provisions  of  the  Con 
stitution  quoted  above,  is  deemed  and  treated  for  the 
purposes  of  assessment  and  taxation  as  an  interest 
in  the  property  affected.  .  .  .  By  the  Constitution 

167 


ARGUMENT 

a  mortgage,  for  the  purpose  of  assessment  and  taxa 
tion,  operates  in  like  manner  to  transfer  the  mort 
gagor's  interest  to  the  extent  represented  by  the 
amount  secured.  .  .  .  If,  by  a  mortgage  on  the  prop 
erty  of  railroad  or  other  quasi-public  corporations,  a 
taxable  interest  in  such  property  is  transferred  by 
the  corporation  to  another,  or  the  whole  interest  is 
vested  in  him,  the  holder  of  such  interest  is  exempted 
from  taxation  for  it,  and  the  corporation  is  assessed 
and  taxed  for  it  notwithstanding  the  transfer.  .  .  . 
On  what  principle,  or  by  what  species  of  reasoning, 
a  tax  upon  property  can  be  upheld  and  assessed 
against  a  party,  be  the  party  a  natural  or  an  artificial 
person,  when  the  taxable  interest  in  it  had,  at  the 
time  of  the  levy  of  the  tax,  been  transferred  to 
another,  I  am  at  a  loss  to  understand.  .  .  .  That 
the  proceedings  by  which  the  taxes  claimed  in  these 
several  actions  were  levied  against  the  railroad  com 
panies  on  taxable  interests  with  which  they  had 
parted  was  not  due  process  of  law,  seems  to  me  so 
obviously  true  as  to  require  no  further  illustration. 
It  goes  almost  without  saying;  and  any  additional 
argument  would  rather  tend  to  obscure  a  truth  which 
should  be  evident  upon  the  simple  statement."  * 

The  learned  Justice  concludes  this  arraignment 
of  the  Constitution  by  saying : — 

"  This  position  of  the  case  was  suggested  to  counsel 
on  more  than  one  occasion  during  the  argument,  and 
no  answer  was  made  to  it.  To  every  other  position 
an  answer  was  attempted,  but  to  this  none ;  and,  as 

*  Pages  88,  89,  90,  and  99. 
1 68 


IN   THE   RAILROAD   TAX    CASES 

we  think,  for  the  best  of  reasons,  because  none  was 
possible." 

This  position  of  the  learned  Circuit  Court  has 
never  been  taken  by  any  of  the  numerous  and 
eminent  counsel  for  the  defendant  who  have  argued 
this  cause  here  and  elsewhere,  and,  I  think,  for  the 
simple  reason  that  the  position  is  based  upon  an 
obvious  misreading  and  palpable  misconstruction  of 
the  language  criticised.  This  misreading  and  mis 
construction  were  pointed  out  in  the  court  below 
by  counsel  for  plaintiff,  who  said : — 

"  Now,  I  think  that  the  reading  of  that  would  be 
very  much  improved  by  a  change  of  the  punctuation. 
As  it  stands  it  reads:  'A  mortgage,  deed  of  trust, 
contract,  or  other  obligation  by  which  a  debt  is 
secured,  shall,  for  the  purposes  of  assessment  and 
taxation,  be  deemed  and  treated  as  an  interest  in 
the  property  affected  thereby.'  There  is  a  full  stop 
there.  We  think  it  ought  not  to  be  there.  It  ought 
to  read:  '  Shall  be  deemed  and  treated  as  an  interest 
in  the  property  affected  thereby,  except  as  to  railroad 
and  other  quasi-public  corporations.' ' 

Counsel  for  defendant  here  are  forced  to  abandon 
the  position  taken  by  the  Circuit  Court,  by  admit 
ting  that  its  reading  of  the  Constitution  is  wrong, 
and  the  reading  of  the  plaintiff  right.  Say  counsel 
in  the  brief  here  : — 

"  There  is  an  obvious  mistake  in  punctuation  in 
the  language  I  am  about  to  quote.  The  period  which 
is  placed  after  the  word  '  thereby '  should  have  been 

169 

L 


ARGUMENT 

placed  after  the  word  '  corporations '  in  the  next 
line.  ...  In  quoting  the  passage  in  question, 
I  shall,  therefore,  put  the  period  after  the  word  '  cor 
porations.'  It  then  reads  as  follows:  'A  mortgage, 
deed  of  trust,  contract,  or  other  obligation  by  which 
a  debt  is  secured,  shall,  for  the  purposes  of  assess 
ment  and  taxation,  be  deemed  and  treated  as  an 
interest  in  the  property  affected  thereby,  except  as  to 
railroad  and  other  quasi-public  corporations^1  "  * 

Indeed,  long  before  the  argument  of  this  cause 
at  Circuit,  the  Supreme  Court  of  California  had 
construed  this  section  of  the  Constitution  and  de 
clared  it  to  mean  what  the  counsel  for  plaintiff  con 
tended  for  in  the  court  below,  and  what  the  counsel 
for  defendant  admit  here.  It  had  said  : — 

"  Reading  the  whole  section,  it  seems  very  plain 
that  as  to  mortgages,  deeds  of  trust,  contracts,  or 
other  obligations  secured  upon  the  property  of  rail 
road  and  other  quasi-public  corporations,  they  should 
not  be  deemed  and  treated  as  an  interest  in  the  prop 
erty  affected  by  them  '  for  the  purposes  of  taxa 
tion.'"! 

Instead,  therefore,  of  holding  the  Constitution  to 
say  that  a  mortgage  is,  in  every  case,  an  interest  in 
the  property,  it  must  be  held  to  say  that,  in  the  case 
of  railroad  and  other  quasi-public  corporations,  it  is 
not  such  an  interest.  Thus  read,  the  Constitution, 

*  Page  30. 

t  Central  Pacific  R.  R.  Co.  vs.  State  Board  of  Equalization, 
60  Cal.  35,  59. 

170 


IN   THE    RAILROAD    TAX    CASES 

whatever  its  other  imperfections,  is  readily  absolved 
from  the  absurdity  of  deliberately  declaring  in  one 
and  the  same  breath  that  certain  property  belongs 
to  A,  but  shall,  nevertheless,  be  assessed  to  B. 

But  it  is  next  urged  that  even  if  a  mortgage  be 
considered  in  the  light  of  a  mere  charge  upon  the 
property  affected,  still,  as  the  Constitution  makes  it 
an  element  of  deduction  in  the  valuation  of  private 
property,  and  not  in  that  of  railroad  property,  there 
is  here  a  plain  and  injurious  discrimination  against 
railroad  property.  The  learned  Circuit  Justice 
states  this  position  very  clearly,  as  follows: — 

"  If  any  element  which  is  taken  into  consideration 
in  the  valuation  of  the  property  of  one  party  be 
omitted  in  the  valuation  of  the  property  of  another, 
a  discrimination  is  made  against  one  and  in  favor  of 
the  other,  which  destroys  the  uniformity  so  essential 
to  all  just  and  equal  taxation.  Such  an  element 
exists  where,  in  the  assessment  of  property  subject 
to  a  mortgage,  the  value  of  the  mortgage  is  deducted 
if  the  property  be  owned  by  a  natural  person,  and  is 
not  deducted  if  owned  by  a  railroad  corporation. 
And  the  Constitution  of  the  State  declares  that,  in 
the  ascertainment  of  values  as  the  basis  of  taxation, 
such  deduction  shall  be  allowed  in  the  one  case  and 
denied  in  the  other."* 

Before  undertaking  the  defense  of  our  Constitu 
tion  upon  this  point,  permit  me  first  to  observe, 
that  if  to  take  an  element  into  consideration  in  the 


*  Page  92  of  the  Record. 
171 


ARGUMENT 

valuation  of  certain  property  and  to  omit  it  in  that 
of  other  property,  or  if,  in  valuing  property,  to  per 
mit  a  deduction  for  the  owner's  debts  in  certain 
cases  and  to  forbid  it  in  others,  "  destroys  the  uni 
formity  so  essential  to  all  just  taxation/'  and  is  a 
sin  against  the  Federal  Constitution,  California  is 
not  the  only  State  which  has  offended.  Alabama, 
Nebraska,  Illinois,  and  Pennsylvania  are  all  equally 
guilty.  * 

*  The  Code  of  Alabama  of  1876  (sec.  362,  subd.  8)  provides 
that  all  "money  loaned,  and  solvent  credits,  or  credits  of  value," 
shall  be  assessed.  Section  365,  subdivision  3,  speaks  of  assessing 
"lien  notes,  mortgage  notes,  and  other  notes."  Under  section  372, 
in  the  case  of  building  and  loan  associations,  the  notes  and  mortgages 
of  the  stockholders  or  members  of  such  associations,  given  to  the 
associations  for  purchase-money  or  advances  of  stock  made  at 
the  distribution  of  the  funds  thereof,  are  exempt  from  taxation. 
Yet  the  Constitution  of  the  State  provides  that  all  property  shall  be 
assessed  in  exact  proportion  to  its  value,  and  the  property  of  corpo 
rations  at  the  same  rate.  (Const.,  art.  II.,  sec.  I.,  subd.  6.) 

In  Nebraska,  the  taxpayer  is  assessed  for  credits,  but  is  allowed 
" to  deduct  from  the  gross  amount  of  credits  the  amount  of  all 
b  on  a  fide  debts  owing  by  such  person,  company,  or  corporation  to 
any  other  person,  company,  or  corporation,  .  .  .  provided, 
that  nothing  in  this  section  shall  be  so  construed  as  to  apply  to  any 
bank  company  or  corporation  exercising  banking  powers  or  privi 
leges."  (Comp.  Stats.  1881,  Revenue,  sec.  27,  p.  404.) 

Precisely  the  same  rule  prevails  in  Illinois.  (Revised  Stats.  1880, 
p.  873,  sec.  27.) 

In  Pennsylvania,  "  mortgages,  money  owing  by  insolvent  debt 
ors,  .  .  .  owned  or  possessed  by  any  person  or  persons  what 
soever,  except  .  .  .  obligations  given  to  banks  for  money  loaned," 
shall  be  taxed.  Mortgages  are  exempt  from  all  taxation  except  for 
State  purposes,  "provided,  the  provisions  of  this  act  shall  not 

172 


IN    THE    RAILROAD    TAX    CASES 

The  basis  of  the  whole  argument  of  the  learned 
Circuit  Court  upon  this  question  of  discrimination 
lies  in  the  assumption  that  in  the  levy  of  a  property 
tax  the  State  is  bound  to  treat  railroad  property 
precisely  like  private  property,  and  is  permitted  to 
make  no  discrimination  whatever  between  them.  If 
this  be  so,  it  is  safe  to  say  that  there  is  hardly  a  State 
in  this  Union  whose  revenue  system  is  not  in  danger 
of  overthrow.  There  is  hardly  a  State  which  does 
not  apply  to  railroad  property  a  special  mode, 
either  of  valuation,  assessment,  or  taxation.  Among 
those  which  do  so  are  numbered  Alabama,  Ar 
kansas,  Connecticut,  Delaware,  Kentucky,  Maine, 
Michigan,  Mississippi,  Nebraska,  New  Hampshire, 
Ohio,  South  Carolina,  and  Virginia.  * 

apply  to  building  and  loan  associations."      (Laws  of  1881,  p.  99, 
sec.  i.) 

Further:  "All  mortgages  .  .  .  shall  be  exempt  from  all 
taxation  except  for  State  purposes,  .  .  .  provided,  that  nothing 
!n  this  act  shall  be  construed  to  apply  to  mortgages  .  .  .  given 
by  corporations;  provided,  that  this  act  shall  only  apply  to  the 
counties  of  Berks,  Schuylkill,"  etc.  ( Brightly 's  Purdon's  Dig., 
1369,  sec.  83.) 

*  In  Alabama,  the  law  fixes  the  minimum  valuation  of  railroad 
property  —  that  minimum  being  a  sum  which,  if  placed  out  at 
interest  at  eight  per  cent,  per  annum,  would  yield  the  yearly  net 
earnings  of  the  road.  (Code,  sec.  383.) 

This  system  of  valuation  is  applied  to  railroad  property  alone. 
No  such  minimum  value,  or  mode  of  valuation,  is  applicable  to 
other  property. 

In  Arkansas,  "  the  roadbed,  water  and  wood  stations,  stations, 
and  such  other  realty  as  is  necessary  to  the  daily  running  operations 

173 


ARGUMENT 

These  various  revenue  systems  of  the  States  de 
monstrate  that,  in  practice  at  least,  the  rule  of  uni 
formity,  which,  it  is  stoutly  maintained  here,  requires 
that  railroad  property  shall  not  be  burdened  differ 
ently  from  other  property,  is  seldom  observed. 
Indeed,  this  course  of  legislation  fully  illustrates  the 
language  of  this  Court,  speaking  through  Mr.  Justice 
Field,  in  the  Delaware  Railroad  Tax  Cases,*  that 

of  the  road,  shall  be  treated  and  estimated  as  personal  property.** 
(Gantt.  Dig.,  5099.) 

This  treatment  of  realty  as  personal  property  is  applied  to  the 
realty  of  railroads  alone.  No  such  rule  obtains  as  to  other  realty. 

In  Connecticut,  a  railroad  pays,  in  lieu  of  all  other  taxes,  on  its 
franchise,  funded  and  floating  debt,  and  property,  a  tax  of  one  per 
cent,  on  the  market  value  of  its  stock  and  funded  and  floating  debt, 
after  deducting  from  such  valuation  the  amount  of  cash  on  hand, 
and  from  the  amount  required  to  be  paid  the  amount  paid  for  taxes 
on  its  real  estate  not  used  for  railroad  purposes.  The  statute 
declares  that  the  valuation  so  made  shall  be  the  measure  of  the 
value  of  such  railroad,  its  rights,  franchises,  and  property  in  the 
State.  (Gen.  Stats.  1875,  P-  7!7>  sec-  4^.) 

Note  here  that  this  mode,  both  of  assessment  and  taxation,  is 
special  and  applicable  to  railroad  property  alone.  The  mode  of 
valuing  the  property  is  special.  The  tax  imposed  —  one  per 
cent. — may  be  more  or  less  than  that  imposed  upon  other  property 
in  the  State.  If  more,  then,  according  to  defendant's  theory,  the 
company  might  complain  ;  if  less,  the  other  taxpayers  might  feel 
aggrieved. 

In  Delaware,  a  special  tax  is  imposed  upon  incorporated  railroads 
of  ten  per  cent,  of  their  annual  net  income  ;  besides  one  hundred 
dollars  for  every  engine,  twenty-five  dollars  for  each  passenger-car, 
ten  dollars  for  each  freight-car,  and  one-half  of  one  per  cent,  upon 
the  cash  value  of  every  share  of  stock.  One  particular  road — the 

*i8  Wall,  231. 
174 


IN   THE    RAILROAD    TAX    CASES 

"the  State  may  impose  taxes  upon  the  corporation 
as  an  entity  existing  under  its  laws,  as  well  as  upon 
the  capital  stock  of  the  corporation  or  the  separate 
corporate  property.  And  the  manner  in  which  the 
value  shall  be  assessed,  and  the  rate  of  taxation, 
however  arbitrary  or  capricious,  are  mere  matters 
of  legislative  discretion." 

It  may  be  answered  that  these    various  revenue 

Philadelphia,  Wilmington,  and  Baltimore  Railroad — is  allowed  to 
pay  a  gross  sum  of  twenty-seven  thousand  dollars  per  annum  in 
lieu  of  all  taxes,  with  certain  exceptions.  (Codes,  1874,  P*  41-) 

In  Kentucky,  it  is  provided  that  railroads  shall  be  assessed  for  tax 
ation  at  the  rate  of  twenty  thousand  dollars  per  mile  for  broad-gauge 
roads,  and  ten  thousand  dollars  for  narrow-gauge.  They  are  to 
pay  upon  this  valuation  "  the  same  rate  of  tax  on  the  assessment  as 
is  levied  by  law  on  real  estate."  (Gen.  Stats.  1883,  p.  744.) 

In  Maine,  under  the  act  of  1880  (ch.  249),  the  Governor  and 
Council  are  to  appraise  the  several  railroads  in  the  State,  with  their 
franchises,  rolling  stock,  and  fixtures,  at  their  cash  value,  and  upon 
this  valuation  to  levy  a  tax  of  one  per  cent.  The  Constitution 
requires  all  taxes  upon  real  and  personal  estate  to  be  apportioned 
and  assessed  equally,  according  to  its  value. 

In  Michigan,  the  Constitution  expressly  declares  that  the  Legis 
lature  may  provide  for  the  collection  of  specific  taxes  from  railroad 
and  other  corporations.  (Art.  XIV.,  sec.  10.) 

In  Mississippi,  the  Constitution  provides  that  taxation  shall  be 
equal  and  uniform, — all  property  shall  be  taxed  in  proportion  to  its 
value.  (Const.,  art.  XIII.,  sec.  20.) 

The  value  of  railroad  property  is  ascertained  by  a  board  in  a 
special  way  ;  but  certain  enumerated  companies  are  allowed  to  pay 
a  gross  tax  of  so  much  per  mile,  "and,"  says  the  code,  "the 
payment  shall  be  in  full  of  all  State  and  county  taxes."  (Revised 
Code,  1880,  sees.  489,  597,  599,  607,  608.) 

In  Nebraska,  railroad  property  is  assessed  by  a  board,  "and," 

175 


ARGUMENT 

systems  are  all  unconstitutional.  It  will,  I  think, 
require  no  little  boldness  to  assert  that  so  many  States 
have  legislated  in  ignorance  or  in  defiance  of  the 
principles  of  the  Federal  Constitution  or  their  own 
organic  law  of  equality.  At  all  events,  the  univer 
sality  of  the  practice  of  discrimination  suggests,  at 
least,  some  common  ground  of  action,  some  common 
principle  of  legislation.  That  principle  is,  I  con 
ceive,  the  right  of  classification  of  property  in  matters 
of  taxation.  The  revenue  systems  of  the  various 

says  the  statute,  "  such  property  shall,  for  the  purpose  of  taxation, 
be  deemed  personal  property."  (Com.  Stats.  1881,  p.  407, 
sees.  39,  40.) 

In  New  Hampshire,  railroads  are  taxed  specially  ;  but  railroads 
"the  construction  of  which  was  commenced  since  the  fifteenth  day 
of  September,  1868,  or  hereafter  constructed  in  this  State,' *  are 
exempt  from  taxation  for  ten  years.  (Gen.  Laws,  1878,  pp. 
159,  160.) 

In  Ohio,  a  State  board  assesses  of  railroads  «*  all  the  personal 
property,  which  shall  be  held  to  include  roadbed,  water  and  wood 
stations,  and  such  other  realty  as  is  necessary  to  the  daily  running 
operations  of  the  road."  (Rev.  Stats.  1880,  sec.  2770.) 

In  South  Carolina,  the  law  provides  that  "  the  roadbed,  right 
of  way,  station  buildings,  toll-houses,  structures,  and  real  estate 
owned  and  necessarily  used  by  any  railroad  .  .  .  company  in  the 
prosecution  of  its  business,  shall,  if  the  company  be  organized  in 
this  State,  be  treated  as  personal  property."  (Gen.  Stats.  1882, 
sees.  179,  1 80.) 

In  Virginia,  the  Constitution  provides  that  "  taxation  shall  be 
equal  and  uniform  ;  all  property  shall  be  taxed  in  proportion  to 
its  value."  (Const,  of  1870,  art.  X.,  sec.  I.)  Yet  a  special 
tax  of  fifty  cents  on  the  hundred  dollars  is  laid  "  on  the  real  and 
personal  property  of  every  railroad  and  canal  company."  (Code 
of  1873,  p.  349,  sec.  8.) 

176 


IN   THE    RAILROAD   TAX   CASES 

States  show  that  it  has  been  the  practice  to  classify 
railroad  property, — to  make  of  it  a  class  apart, — 
and  to  apply  to  it  special  modes  of  valuation,  assess 
ment,  and  taxation,  and  to  impose  upon  it  special 
burdens,  not  applied  to  and  not  imposed  upon  any 
other  kind  of  property. 

This  right  of  classification  I  do  not  understand 
to  be  denied  by  the  defendant ;  and  if  it  were,  it  is 
universally  recognized,  and  has  been  expressly  sanc 
tioned  by  this  Court  in  the  Kentucky  tax  case. 
Says  the  Court  there  : — 

"  There  is  nothing  to  forbid  the  classification  of 
property  for  the  purposes  of  taxation  and  the  valua 
tion  of  different  classes  by  different  methods.  The  rule 
of  equality,  in  respect  to  the  subject,  only  requires 
the  same  means  and  methods  to  be  applied  impar 
tially  to  all  constituents  of  each  class,  so  that  the 
law  shall  operate  equally  and  uniformly  upon  all  per 
sons  in  similar  circumstances.  There  is  no  objection, 
therefore,  to  the  discrimination  made  as  between  rail 
road  companies  and  other  corporations  in  the  meth 
ods  and  instrumentalities  by  which  the  value  of  their 
property  is  ascertained.  The  different  nature  and 
uses  of  their  property  justify  the  discrimination  in 
this  respect  which  the  Legislature  has  seen  fit  to 
impose." 

What  is  there,  then,  to  inhibit  the  State  ot  Cali 
fornia  from  classifying  the  property  of  railroads  and 
other  quasi-public  corporations,  and  applying  to  it 
a  system  of  valuation  and  taxation  different  from 

177 


ARGUMENT 

that  applicable  to  private  property  ?  The  fact  that 
such  property  is  affected  with  a  public  use  affixes  to 
it  at  once  a  badge  to  distinguish  it  from  other  prop 
erty.  It  is,  by  its  very  nature,  made  to  enjoy  special 
privileges  and  to  bear  certain  special  burdens  not 
enjoyed  or  borne  by  other  property.  The  use  of 
property  dedicated  to  a  public  use  is  subject  to 
regulation  by  the  public — a  burden  not  imposed 
upon  strictly  private  property.  The  enjoyment  of 
such  property  carries  with  it  the  right  of  eminent 
domain,  which  is  not  accorded  to  the  enjoyment  of 
strictly  private  property.  As  an  agency  of  the  sov 
ereign,  it  enjoys  certain  sovereign  attributes,  and  is 
subjected  to  a  certain  corresponding  sovereign  con 
trol.  And  the  fact  that  it  is  an  agency  of  the  sover 
eign — an  instrument  of  state — might  well,  in  the 
wisdom  of  the  sovereign,  lead  to  its  absolute  ex 
emption  from  any  other  public  burdens  than  such 
as  necessarily  attach  to  it.  But  if  such  an  exemp 
tion  would  be  no  discrimination  of  which  other 
property  could  complain,  so  an  unfavorable  discrimi 
nation  by  which  it  is  burdened  is  not  a  ground  upon 
which  it  can  complain.  But  grant  the  power  to 
make  a  discrimination,  and  the  question  of  advan 
tage  or  disadvantage  becomes  at  once  immaterial. 

Certain  objections  are  made,  however,  to  the 
classification  contained  in  our  Constitution,  which  I 
purpose  now  briefly  to  consider. 

It  is  urged,  in  the  first  place,  that  while  the  Con 
stitution  might  have  classified — and  properly  classi- 

178 


IN    THE    RAILROAD    TAX    CASES 

fied — the  property  essential  to  the  operation  of  the 
road,  yet  if  the  classification  extends  to  all  the  prop 
erty  of  the  railroad  company, —  as  well  that  which 
is  essential  to  the  operation  of  the  road  as  that 
which  is  not, —  then  the  classification  is  vicious  and 
void.  This  claim  is  put  forward  on  the  strength 
of  the  fact  that  this  defendant  owns  certain  lands, 
which  are  said  to  be  farming  and  grazing  lands,  not 
connected. with  the  operation  of  its  railroad. 

I  answer,  that  the  Southern  Pacific  Railroad  Com 
pany  was  never  organized  to  go  into  the  business 
of  farming  and  grazing ;  that  the  framers  of  the 
Constitution  cannot  be  supposed  to  have  known 
that  that  corporation  had  transcended  the  limits  of 
its  charter  to  follow  agricultural  and  pastoral  pursuits. 
The  only  legitimate  business  of  the  corporation  was 
and  is  to  operate  a  railroad.  To  that  all  its  prop 
erty  and  all  its  actions  must  be  made  subservient. 
If  it  owns  an  office  in  the  city  of  San  Francisco  in 
which  its  books  are  kept,  its  tickets  sold,  its  funds 
received  or  disbursed,  its  general  business  centered 
and  distributed,  that  office,  though  real  property, 
removed  from  any  actual  line  of  railroad,  is  yet  in 
every  sense  railroad  property,  as  essential  to  the 
proper  conduct  of  the  business  of  the  company  as 
is  the  rail  upon  the  roadbed,  the  signal  upon  the 
switch,  or  the  roundhouse  at  the  station. 

By  the  very  act  of  its  incorporation, — the  statute 
of  1 86 1, — the  company  has  no  power  to  hold  real 
property  other  than  such  as  is  "  necessary  for  the 

179 


ARGUMENT 

construction,  completion,  and  maintenance  of  such 
railroad,"  and  if  it  may  take  voluntary  grants  of 
real  estate,  still  these  must  be  confined  to  such  as 
are  made  "  to  aid  and  encourage  the  construction, 
maintenance,  and  accommodation  of  such  railroad." 
The  whole  of  its  property  is  thus  made  to  subserve 
the  road.  Its  real  estate  is  but  an  adjunct  to  the 
road — an  aid — which  the  corporation  is  allowed  to 
hold  only  because  it  is  an  aid  to  the  road.  It,  like 
the  road,  is  dedicated  to  and  subserves  a  public  use. 
In  the  Kentucky  tax  case,  the  special  mode  of 
taxation  applicable  to  railroad  corporations  was 
justified  and  upheld  by  this  Court  upon  the  ground 
of  classification  of  property ;  yet  we  find  that  the 
classification  was  not  confined  to  property  actually 
used  in  the  operation  of  the  road.  The  words  of 
classification,  as  with  us,  comprised  the  whole  prop 
erty  of  the  corporation.  Said  the  statute : — 

"The  president  or  other  chief  officer  of  each  rail 
road  company  .  .  .  shall  .  .  .  return  .  .  .  the 
total  length  of  such  railroad,  including  the  length 
thereof  beyond  the  limits  of  the  State,  and  designat 
ing  its  length  within  this  State,  and  in  each  county, 
city,  and  incorporate  town  therein,  together  with 
the  average  value  per  mile  thereof,  .  .  .  including 
engines,  and  cars;  and  a  list  of  the  depot  grounds 
and  improvements,  and  other  real  estate  of  the  said 
company,  and  the  value  thereof." 

The  action  was  brought  to  recover  the  taxes 
assessed  on  "  defendant's  line  of  railroad  lying  in 

180 


IN   THE    RAILROAD    TAX    CASES 

this  State,  .  .  .  together  with  the  rolling  stock, 
engines,  cars,  depot  grounds,  improvements,  and 
other  real  estate." 

But  grant  that  the  grazing  and  farming  lands  of 
the  company  could  not  properly  be  classified  as 
strictly  railroad  property,  what  follows?  Simply 
this:  that  in  classifying  railroad  property  the  Con 
stitution  uses  descriptive  words,  which,  being  too 
broad,  include  with  property  which  is  strictly  classi 
fiable  some  property  which  cannot  properly  be 
classified  with  it.  But  does  it  follow,  therefore,  that 
the  classification  must  utterly  fail?  Does  it  follow 
that  the  purpose  of  the  framers  of  the  Constitution 
must  be  wholly  frustrated  because  in  doing  what 
they  legitimately  could  do  they  coupled  with  it  an 
attempt  to  do  what  they  legitimately  could  not  do? 
Must  such  a  result  follow  when  the  bounds  between 
the  exercise  of  legitimate  power  and  illegitimate 
assumption  are  as  easily  defined  as  they  are  here? 
Let  it  be  observed  and  remembered  that  the  two 
classes  of  property  of  railroad  companies  —  the 
railroad  proper,  which  it  is  admitted  can  be  classified, 
and  these  outside  lands,  which  it  is  claimed  can  not 
be  classified — are,  by  the  Constitution,  subjected  to 
two  absolutely  distinct  systems  of  assessment.  Each 
is  assessed  separately,  at  different  times,  and  by 
different  officials.  The  railroad  proper  is  assessed 
by  the  State  Board  of  Equalization,  and  its  descrip 
tion  and  value  are  set  down  in  its  books.  The 
outside  property  is  assessed  by  the  local  assessors, 

181 


ARGUMENT 

and  its  description  and  value  are  set  down  in  their 
books.  Thus  the  two  classes  of  property  are  always 
kept  separate. 

Now,  for  the  taxes  upon  these  outside  lands  no 
claim  is  made  in  this  action.  On  the  contrary,  it  is 
found  as  a  fact  that  upon  these  lands,  whose  pres 
ence  in  the  classification  is,  it  is  claimed,  the  only 
element  which  renders  the  whole  classification  void, 
the  taxes  have  been  fully  paid.*  The  only  tax 
involved  here  is  a  tax  upon  the  road — property 
which  it  is  not  denied  is  properly  classified. 

Why,  then,  shall  not  the  classification  as  to  the 
road  hold  good?  The  part  of  the  classification 
which  is  claimed  to  be  bad  can  be  readily  elimi 
nated, —  nay,  has  already  been  eliminated  by  the 
action  of  the  defendant  itself.  Why,  then,  shall 
not  the  classification  stand  as  to  the  balance, 
which  is  confessedly  good?  Why  shall  the  defend 
ant  be  permitted  to  escape  taxation  upon  the  good 
part,  when  it  has  already  taken  the  bad  out  of 
the  controversy  by  voluntarily  paying  the  taxes 
upon  it  ? 

A  striking  and  pertinent  illustration  and  applica 
tion  of  the  proposition  that  I  am  now  trying  to 
establish  is  found  in  the  case  of  the  State  Freight 
Tax.  There  the  State  of  Pennsylvania  had  passed 
a  law  imposing  an  indiscriminate  tax  upon  all  the 
freight  carried  by  railways  in  Pennsylvania.  Now, 
the  State  could  constitutionally  impose  the  tax  upon 

*  Twenty-sixth  Finding,  Record,  pp.  72,  73. 
182 


IN   THE    RAILROAD   TAX    CASES 

freight  received  for  carriage  wholly  within  the  State, 
but  not  upon  freight  received  for  carriage  to  or  from 
any  part  outside  the  State.  Did  it  follow  that  the 
whole  tax  was  void  ?  No ;  the  good  was  separated 
from  the  bad. 

Permit  me  to  read  the  epitome  of  the  case  from 
this  opinion  of  Mr.  Justice  Miller,  in  Stanley  vs. 
The  Supervisors,  because  it  sets  forth  clearly  and 
distinctly  the  point  which  I  am  now  addressing 
myself  to.  The  Court  said  here  : — 

"The  case  of  the  State  Freight  Tax,  15  Wallace, 
232,  arose  out  of  a  statute  of  Pennsylvania  which 
attempted  to  impose  a  tax  on  commerce  forbidden 
by  the  Constitution  of  the  United  States.  The  act 
imposed  a  tax  upon  every  ton  of  freight  carried  by 
every  railroad  company,  steamboat  company,  and 
canal  company  doing  business  within  the  State. 
The  railroad  companies  who  contested  the  tax  pre 
sented  a  statement,  which  separated  the  freight 
transported  by  them  between  points  solely  within 
the  State,  and  limited  to  such  destination,  and 
that  which  was  received  from  or  carried  beyond 
those  limits.  This  Court  held  the  latter  to  be  void 
as  a  tax  on  interstate  commerce,  and  did  not  declare 
the  whole  tax  or  the  whole  statute  void.  It  said: 
It  is  not  the  purpose  of  the  law,  but  its  effect,  which  we 
are  nozv  considering,  nor  is  it  at  all  material  that  the 
tax  is  levied  upon  all  freight,  as  well  that  which  is 
wholly  internal  as  that  embarked  in  interstate  com 
merce.  The  conclusion  of  the  whole  is  that,  in  our 
opinion,  the  act  of  the  Legislature  of  Pennsylvania 

183 


ARGUMENT 

of  August  25,  1864,  so  far  as  it  applies  to  articles 
carried  through  the  State,  or  articles  taken  up  in  the 
State  and  carried  out  of  it,  or  articles  taken  up  with 
out  the  State  and  brought  into  it,  is  unconstitutional 
and  void.  The  same  language  is  repeated  in  Erie 
Railway  Company  vs.  Pennsylvania,  decided  at  the 
same  time.  Both  cases  were  remanded  to  the  State 
Court  for  further  proceedings,  in  conformity  with 
the  opinion,  which  could  only  mean  to  enforce  the 
tax  on  transportation  limited  to  the  State,  and  not 
on  interstate  commerce.  This  is  a  clear  case  of 
distinguishing  between  the  articles  protected  by  the 
Constitution  of  the  United  States  and  those  which 
were  not,  though  nothing  in  the  language  of  the  statute 
authorized  any  such  distinction"  * 

I  submit  that  this  is  a  parallel  case  to  the  one  at 
bar.  There  the  State  imposed  an  indiscriminate 
tax,  part  good,  part  bad.  The  taxpayer  came  into 
court,  and  showed  what  part  was  good  and  what 
bad — what  part  the  State  could  impose  and  what 
not.  The  Supreme  Court  said  that  although  the 
tax  was  a  unit,  yet  as  the  good  could  be  readily 
segregated  from  the  bad,  it  would  leave  the  good 
to  .stand,  and  simply  eliminate  the  bad.  So  I  say 
here,  if  we  grant  that  the  inclusion  of  the  farming 
and  grazing  lands  of  the  company  in  the  class  of 
railroad  property  is  not  permissible,  still,  as  the 
strictly  railroad  property  is  properly  classified,  the 
classification  made  by  the  law  will  stand  as  to 
the  latter,  and  the  former  alone  will  be  excluded. 

*  105  U.  S. 

184 


IN   THE    RAILROAD    TAX    CASES 

But  it  is  further  urged  that  the  Constitution 
shows  upon  its  face  that  the  classification  is  of 
persons  and  not  of  property,  because  the  language 
used  does  not  in  terms  speak  of  railroad  property, 
but  of  property  of  railroad  corporations. 

The  Constitutional  Convention  knew  that  at  the 
time  it  wrote  there  was  no  railroad  property  in 
California  which  was  not  owned  by  a  railroad  cor 
poration.  It  is  true  that  certain  statutes  of  the 
State  were  given  in  evidence  here,  granting  to 
certain  individuals  railroad  franchises ;  but  the  case 
shows  that  such  roads  have  never  been  built,  never 
have  had  any  existence  as  property.  The  phrase, 
then,  "  the  property  of  railroad  corporations/'  was 
at  the  time  it  was  used  in  California  the  equivalent 
of  "all  railroad  property."  It  is  true  that  since 
the  Constitution  was  adopted  an  insignificant  local 
road  of  twenty-six  and  a  half  miles  in  length  has, 
under  foreclosure  proceedings,  passed  into  the 
hands  of  a  private  individual.  But  it  is  submitted 
that  this  unusual,  and  no  doubt  merely  temporary, 
mode  of  ownership  does  not  destroy  a  classification 
which  when  made  was  made  by  words  which  then 
aptly  described,  and  in  the  ordinary  course  of 
things  are  well  calculated  to  describe,  the  property 
intended  to  be  classified. 

I  submit  upon  this  question  two  propositions : 
First,  if  in  making  a  classification,  the  lawmaker 
uses  language  sufficient,  according  to  the  ordinary 
course  of  things,  to  describe  the  property  intended, 

185 


ARGUMENT 

the  classification  does  not  fail  from  the  fact  that 
some  insignificant  part  of  the  property  intended  is 
not  covered  by  the  descriptive  words  used ;  and, 
secondly,  if  in  making  a  classification  descriptive 
words  are  used  which  are  at  the  time  sufficient  to 
include  and  cover  the  whole  of  the  property  clas 
sified,  the  classification  is  not  avoided  and  annulled 
because  subsequently  some  insignificant  portion  of 
the  property  is,  by  an  unusual  and  extraordinary 
course  of  dealing,  withdrawn  from  the  scope  of  the 
descriptive  words. 

In  the  Kentucky  tax  case,  this  Court,  as  already 
stated,  upheld  the  system  of  taxation  on  the  ground 
of  classification  of  railroad  property ;  yet  the  de 
scriptive  words  by  which  the  classification  was  made 
were  not  "  railroad  property,"  but  "  the  property 
of  railroad  companies";  and  the  whole  tenor  of  the 
statute  shows  that  the  system  presented  could  only 
be  applied  to  the  property  of  corporations  owning 
railroads.  The  very  title  of  the  statute  is,  "An 
act  to  prescribe  the  mode  of  ascertaining  the  value 
of  the  property  of  railroad  companies  for  taxation, 
and  for  taxing  the  same."  The  first  section  pro 
vides  for  a  report  which  can  only  be  made  by  "  the 
president  or  chief  officer  of  each  railroad  company 
or  other  corporation  owning  a  railroad,"  while  the 
fourth  provides  for  a  notice  to  be  given  to  "each 
railroad  company  of  the  amount  of  its  assessment." 

It  is  perfectly  apparent  that  this  Court  under 
stood  the  words  "railroad  property"  and  "property 

186 


IN   THE    RAILROAD    TAX    CASES 

of  railroad  companies"  to  mean  one  and  the  same 
thing ;  for  it  declares  the  act  to  have  classified 
railroad  property,  and  says,  "  in  the  legislation  of 
Kentucky  on  the  subject,  railroad  property  is  clas 
sified  by  itself,"  though,  as  I  have  shown,  the  act 
throughout  speaks  of  the  property  of  railroad 
corporations,  and  never  in  terms  of  "  railroad 
property." 

Now,  I  ask,  would  the  Court  have  listened  to 
the  argument  that  there  was  no  classification 
because  the  act  did  not  speak  of  property,  but 
of  particular  owners  of  property  ?  Could  it  have 
been  successfully  urged  here  that  there  was  no 
classification  because  private  persons  as  well  as 
corporations  might  own  a  railroad  ?  Would  the 
Court  have  declared  the  classification  void,  though 
it  had  been  shown  that  after  the  passage  of  the 
statute  some  private  person  had  bought  an  insig 
nificant  portion  of  a  Kentucky  railroad?  The 
truth  is  that  the  words  "  railroad  property "  and 
"  property  of  railroad  companies  "  are  universally 
understood  to  mean  one  and  the  same  thing. 

If  these  views  are  correct,  they  dispose  of  this 
branch  of  the  case,  for  if  it  is  once  admitted  that 
railroad  property  is  classifiable,  and  that  our  Con 
stitution  has  classified  it,  then  any  system  of  tax 
ation  applied  to  it,  however  discriminatory,  does 
not  fall  within  the  inhibition  of  the  Fourteenth 
Amendment, 

There  is  another  view  of  this  subject  of  classifi- 

187 


ARGUMENT 

cation  which,  to  my  mind,  is  no  less  conclusive. 
The  same  law  which  provides  for  the  assessment 
of  mortgages  may  classify  them  according  to  their 
distinctive  characteristics,  and  may,  according  to  the 
wisdom  of  the  legislators,  exempt  a  certain  class 
altogether  from  taxation.  This  is  what  has  been 
done  here. 

The  history  of  the  Constitution  of  1879  shows 
that  the  provisions  regarding  the  taxation  of  mort 
gages  arose  from  a  public  desire  to  subject  the 
lenders  of  money  to  the  burdens  of  taxation.  This 
was  accomplished  by  declaring  that  a  mortgage 
should  be  deemed  and  treated  as  an  interest  in  the 
property  affected,  and  "  assessed  and  taxed  to  the 
owner  thereof,"  and,  in  order  to  avoid  double 
taxation,  that  the  residue  only  of  the  property — 
the  value  of  the  property  less  the  value  of  the 
security — should  be  assessed  to  the  mortgagor. 

When  the  convention  had  reached  this  point, 
it  was  reminded  that  there  were  mortgages  made 
by  railroad  and  other  quasi-public  corporations 
of  the  State  to  secure  large  amounts  of  bonds 
owned  in  all  parts  of  the  world.  The  difficulty  of 
making  the  general  provisions  of  the  Constitution 
applicable  to  the  mortgages  of  these  corporations 
was  at  once  apparent  and  insuperable.  The  mort 
gages  of  the  Central  Pacific  Company,  for  instance, 
covered  property  in  the  State  and  outside  of  the 
State.  Those  of  the  Southern  Pacific  Company, 
besides  the  railways,  depots,  and  grounds,  covered 

188 


IN   THE    RAILROAD    TAX    CASES 

a  large  quantity  of  personal  property,  such  as 
"  machinery,  weighing-scales,  and  tools."  It  affected 
a  land-grant  of  eleven  million  acres, — a  grant  partly 
earned  and  partly  unearned,  partly  patented  and 
partly  unpatented,  the  title  to  a  portion  of  which 
only  had  vested  in  the  company,  the  rest  remaining 
in  the  Government, —  a  land-grant  continually  shift 
ing  in  its  proportions,  increasing  on  one  side  by  new 
patents  received  from  the  Government,  and  decreas 
ing  on  the  other  by  sales  made  by  the  company. 

When  the  convention  came  to  face  the  problem 
of  apportioning  the  value  of  these  mortgages 
among  the  various  counties  of  the  State, —  how  it 
should  be  deducted  from  the  various  parcels  of  the 
companies'  property,  how  much  of  it  was  to  be 
borne  by  the  main  trunk,  how  much  by  the  branch 
roads,  how  much  by  the  depot  grounds  and  yards, 
how  much  by  the  outlying  lands,  how  much  by  the 
personal  property, — when  it  considered  the  fact 
that  the  mortgages  covered  bonds  that  might  issue 
in  the  future,  or  might  at  any  time  be  redeemed, 
and  that  it  was  impossible  for  any  assessor  to  ascer 
tain  how  many  bonds  were  actually  outstanding,  or 
who  or  where  were  the  owners  of  them,  and  the 
further  fact  that  the  mortgages  upon  the  Central 
Pacific  Railroad  covered  property  partly  in  the  State 
and  partly  out  of  the  State,  and  that  it  was  extremely 
difficult,  if  not  impossible,  to  ascertain  what  relative 
proportion  of  the  security  was  in  the  State  and 
what  out, — when,  I  say,  the  framers  of  the  Constitu- 

189 


ARGUMENT 

tion  were  brought  face  to  face  with  these  difficulties, 
they  readily  perceived  that  the  general  scheme  of 
taxation  could  not  apply  to  the  mortgages  of  these 
railroad  companies. 

In  seeking  a  way  out,  in  endeavoring  to  devise  a 
plan  which  would  at  once  carry  out  the  wishes  of 
the  people  as  to  taxing  mortgages  without  producing 
double  taxation,  and  would  still  be  applicable  to 
the  immense  property  of  these  railroad  corporations, 
the  convention  had  its  attention  called  to  the  fact — 
a  fact  of  public  notoriety,  spread  upon  the  records 
of  every  county  in  the  State — that  the  mortgages 
given  by  these  companies  contained  a  covenant  that 
the  mortgagors  themselves  should  pay  all  taxes 
imposed  upon  the  property  mortgaged,  and  dis 
charge  every  lien  or  burden  thereon  that  might  have 
priority  of  the  mortgage.  In  this  covenant  was 
found  a  ready  solution  of  the  difficulty.  In  the 
light  of  its  obligations,  it  was  perfectly  apparent 
that  the  assessing  of  the  mortgage  separately  to  the 
mortgagee  and  the  residuary  interest  in  the  land 
merely  to  the  mortgagor  would  be  an  idle  ceremony, 
and  would  accomplish  none  of  the  objects  which  the 
convention  had  in  view.  It  would  not  have  the 
effect  of  imposing  a  tax  upon  the  mortgagee,  since 
by  virtue  of  the  covenant  he  could  always  make  the 
mortgagor  pay  the  tax.  And  as  to  the  companies, 
it  could  not,  for  the  same  reason,  lighten  their  bur 
den  of  taxation.  Since  they  were  under  obligation 
to  pay  the  whole  tax, — as  well  that  imposed  upon 

190 


IN   THE   RAILROAD   TAX   CASES 

the  interest  represented  by  the  mortgage  as  that 
upon  the  residuary  interest, — it  could  be  productive 
of  no  conceivable  benefit  to  them  to  have  these  two 
interests  assessed  separately,  and  of  no  conceivable 
injury  to  have  them  assessed  in  lump.  The  result,  in 
the  end,  upon  the  amount  of  taxes  they  should  pay 
would  be  the  same.  In  both  cases  their  burden  of 
taxation  would  be  the  same.  The  convention  there 
fore  resolved  that  the  mortgages  of  these  companies 
should  not  be  assessed;  that  their  property  should 
be  assessed  as  a  unit,  while  the  property  of  other 
persons  was  assessed  in  fractions — part  to  the  mort 
gagor,  part  to  the  mortgagee. 

Thus  the  Constitution  classified  mortgages  for 
purposes  of  taxation,  subjecting  one  class  to  taxation 
and  exempting  the  other, —  subjecting  to  taxation 
that  class  in  which  the  mortgagee  might  be  bound 
to  pay  the  tax,  and  exempting  from  taxation  that  in 
which  the  mortgagee  was,  by  the  very  terms  of  the 
mortgage,  placed  beyond  the  reach  of  taxation.  The 
scope  and  object  of  its  provisions  will  be  at  once 
apparent  if,  according  to  ancient  practice,  we  place 
together  in  the  shape  of  a  preamble  the  law  and  the 
reason  of  the  law,  thus: — 

"  Whereas  it  is  desirable  that  the  lenders  of  money 
upon  mortgages  should  pay  taxes  upon  the  value  of 
their  mortgages:  therefore,  be  it  enacted,  that  a  mort 
gage  shall  be  deemed  and  treated,  for  purposes  of 
assessment,  as  an  interest  in  the  property  affected 
thereby,  and  the  value  thereof  shall  be  assessed  to 

191 


ARGUMENT 

the  mortgagee,  and  the  value  of  the  residue  only 
shall  be  assessed  to  the  owner  of  the  property.  But 
whereas  the  mortgages  of  railroad  and  other  quasi- 
public  corporations  contain  a  covenant  by  which  the 
mortgagor  is  obligated  to  pay  the  tax  upon  the  whole 
property  mortgaged;  and  whereas,  in  view  of  this 
covenant,  it  would  be  idle  to  assess  the  mortgage 
interest  to  the  mortgagee,  for  that  interest  being  an 
interest  in  the  property  mortgaged,  the  mortgagor  is 
bound  by  the  terms  of  the  covenant  to  pay  the  taxes 
thereon;  and  whereas,  since  the  mortgagor  is  bound 
to  pay  the  taxes  upon  the  whole  property,  nothing 
would  be  accomplished  in  the  end  by  assessing  any 
part  of  it  to  the  mortgagee:  therefore,  be  it  enacted, 
that  in  the  case  of  mortgages  of  railroad  and  other 
quasi-public  corporations,  the  whole  property  shall 
be  assessed  to  the  mortgagor,  and  the  mortgagee 
shall  not  be  assessed  at  all." 

Thus  were  railroad  mortgages  classified.  For 
these  reasons  they  were  withdrawn  from  the  system 
of  taxation  applicable  to  ordinary  mortgages.  It  is 
submitted  that  the  reasons  are  proper  and  the  classi 
fication  valid. 

The  answer  given  by  the  defendant  to  these  views 
is,  that  the  covenant  in  the  mortgage  has  not  the 
meaning  which  I  ascribe  to  it.  In  other  words, 
it  affirms  that,  under  the  Constitution  and  laws 
of  California,  if  a  mortgage  were  assessed  to  the 
mortgagee,  the  mortgagor  would  not  be  obligated  to 
pay  the  tax  thereon,  though  the  mortgage  con 
tained  this  covenant. 

192 


IN   THE    RAILROAD   TAX    CASES 

This  is  a  question  of  the  effect  of  the  Constitu 
tion  and  laws  of  California,  and  is  expressly  decided 
against  the  contention  of  the  defendant  by  the  de 
cision  of  the  Supreme  Court  of  that  State,  in  Beck- 
man  vs.  Skaggs.*  That  decision  settles  the  law  of 
California  precisely  as  I  contend  it  to  be. 

Upon  the  ground  of  classification,  then,  whether 
of  railroad  property  or  of  mortgages,  the  system  of 
of  taxation  applied  in  California  to  railroads  is,  it  is 
submitted,  entirely  legitimate  and  constitutional. 

The  case  of  the  plaintiff  in  error,  so  far  as  any 
Federal  question  is  concerned,  might  well  rest 
here.  But  it  may  not  be  amiss  to  say  a  few  words 
touching  some  further  positions  assumed  by  the 
defendant. 

The  shield  behind  which  it  attacks  the  Consti 
tution  and  laws  of  California  is  the  Fourteenth 
Amendment.  It  argues  that  that  amendment 
guarantees  to  every  person  within  the  jurisdiction 
of  the  State  the  equal  protection  of  the  laws ;  that 
a  corporation  is  a  person ;  that,  therefore,  it  must 
receive  the  same  protection  as  that  accorded  to  all 
other  persons  in  like  circumstances.  The  special 
argument  advanced  is,  that  if  an  individual  owns 
property,  and  a  corporation  owns  precisely  the  same 
kind  of  property,  the  law  protects  them  both  equally 
in  the  use  and  enjoyment  of  that  property ;  and  for 
the  protection  it  affords  the  corporation  the  Govern 
ment  can  demand  no  greater  or  different  return  in 


*59Cal. 
193 


ARGUMENT 

the  shape  of  taxes  than  it  demands  from  the  indi 
vidual. 

That  argument  I  beg  leave  to  controvert.  I 
venture  to  affirm  in  broad  terms  that  a  State  may 
demand  taxes  from  a  corporation  when,  under  the 
same  circumstances,  it  asks  none  from  an  individual. 
To  illustrate :  The  Constitution  of  California  au 
thorizes  a  tax  on  incomes.  No  one  denies  the 
power  to  impose  and  collect  such  a  tax.  The  rule 
of  equality  contended  for  by  the  defendant  would 
compel  the  State,  if  it  taxed  the  income  of  any 
corporation,  to  tax  as  well  the  income  of  all  indi 
viduals  similarly  derived;  for,  if  both  the  corpora 
tion  and  the  individual  are  entitled  to  the  equal 
protection  of  the  law,  the  State  cannot  tax  the  cor 
poration  while  exempting  the  individual  as  to  things 
which  are  essentially  the  same — income  from  the 
same  source. 

But  the  taxing  system  of  many  of  the  States 
shows  that  the  practice  has  been  the  other  way. 
Among  these  may  be  numbered  Delaware,  Mas 
sachusetts,  North  Carolina,  Pennsylvania,  Rhode 
Island,  and  Tennessee.  *  In  all  these  States  a  tax 

*  In  Delaware,  it  is  provided,  «« that  all  railroad  and  canal  com 
panies  incorporated  under  the  laws  of  the  State,"  etc.,  shall  pay 
"a  tax  often  per  centum  upon  the  net  earnings  or  income  received 
.  .  .  during  the  preceding  year.*'  (Rev.  Codes,  1874,  p.  41.) 

No  provision  is  made  for  taxing  incomes  derived  from  railroads 
or  canals  owned  by  private  persons. 

In  Massachusetts,  "  the  Tax  Commissioner  shall  .  .  .  ascer 
tain  and  determine  the  net  profits  or  gains  of  each  corporation  from 

194 


IN   THE    RAILROAD    TAX    CASES 

is  imposed  upon  the  income  of  corporations  when, 
under  the  same  circumstances,  none  is  imposed 
upon  that  of  individuals. 

It  may  be  contended  here — indeed,  it  was  so 
urged  in  the  court  below — that  in  the  matter  of  the 
equal  protection  guaranteed  to  corporations  by  the 
Fourteenth  Amendment  a  distinction  must  be  drawn 
between  property  and  income;  that  while  no  dis 
criminating  tax  can  be  levied  upon  the  property 
of  the  corporation,  it  may  be  so  levied  upon  its 
income;  that  while  you  may  discriminate  between 
the  income  of  the  corporation  and  that  of  the 
individual,  though  it  be  derived  from  the  same 
property,  yet  the  property  itself  must  be  taxed  alike. 

But  I  submit  that  if  the  State  may  legitimately 
lay  a  tax  upon  the  income  of  a  corporation  whilst  it 
lays  none  upon  that  of  the  individual  derived  from 
the  same  property,  so  may  it  legitimately  lay  a  tax 
upon  the  property  itself  of  the  corporation  whilst  it 
imposes  none  upon  that  of  the  individual.  If  the 
rule  of  equality  demands  that  the  property  be  taxed 
alike,  it  clearly  cannot  permit  the  income  from  the 
property  to  be  taxed  differently.  If  the  State  may 

which  a  report  is  required  .  .  .  and  shall  assess  a  tax  of  four  per 
cent,  upon  the  amount  thereof."  (Pub.  Stats.  1882,  p.  140, 
sec.  45.) 

In  North  Carolina,  express  and  telegraph  companies  pay  two  per 
cent,  on  their  gross  earnings.  (Battle's  Revision,  1873,  p.  783, 
sec.  93.) 

In  Pennsylvania,  each  railroad,  canal,  and  transportation  com 
pany  "shall  pay  a  tax  of  three  fourths  of  one  per  cent,  upon  the 

195 


ARGUMENT 

make  one  kind  of  discrimination,  it  clearly  can  the 
other.  What  a  mockery  would  that  law  be  which, 
while  pretending  to  discharge  the  duty  of  equal  pro 
tection  to  the  farms  of  A  and  B,  should  lay  a  tax 
of  ten  per  cent,  or  fifty  per  cent,  upon  the  income 
which  A  derives  from  his  farm  and  none  upon  that 
which  B  derives  from  his! 

To  my  mind,  the  fallacy,  if  I  may  be  permitted 
so  to  term  it,  of  the  argument  lies  in  the  assumption 
that  corporations  are  entitled  to  be  governed  by 
the  laws  that  are  applicable  to  natural  persons. 
This,  it  is  said,  results  from  the  fact  that  corpora 
tions  are  persons,  and  that  the  last  clause  of  the 
Fourteenth  Amendment  refers  to  all  persons  with 
out  distinction. 

The  defendant  has  been  at  pains  to  show  that 
corporations  are  persons,  and  that  being  such  they 
are  entitled  to  the  protection  of  the  Fourteenth 
Amendment.  There  was  scarcely  need  of  the  array 
of  learning  and  elaborate  disquisition  which  has 

gross  receipts  of  said  company."  ( Brightly 's  Purdon's  Dig.,  p. 
1384,  sec.  1 6 1.) 

In  Rhode  Island,  telegraph  and  telephone  companies  pay  one 
per  cent,  of  their  gross  receipts,  "which  sum  shall  be  in  lieu  of  all 
other  taxes  upon  its  lines  and  personal  property."  (Pub.  Stats., 
p.  84,  sec.  10.) 

In  Tennessee,  "  each  railroad  company  and  every  other  incorpo 
rated  company  except  charitable  and  religious,  doing  business  in 
this  State,  shall  pay  into  the  treasury  of  the  State  six  mills  on  the 
dollar  on  the  amount  of  the  net  earnings  of  such  railroad  company," 
etc.  (Stats.  1 87 1,  sec.  ^53,  subd.  67.) 

196 


IN    THE    RAILROAD    TAX    CASES 

been  displayed  on  this  point.  Of  course,  corpora 
tions  are  persons,  and,  of  course,  they  are  protected 
by  the  Fourteenth  Amendment.  No  one,  I  presume, 
has  ever  doubted  it.  The  question  is,  Does  that 
amendment  place  corporations  upon  a  footing  of 
equality  with  individuals? 

Blackstone  says :  "  Persons  also  are  divided  by  the 
law  into  either  natural  persons  or  artificial.  Natural 
persons  are  such  as  the  God  of  nature  formed  us; 
artificial  are  such  as  are  created  and  devised  by 
human  laws  for  the  purposes  of  society  and  govern 
ment,  which  are  called  corporations  or  bodies 
politic."*  This  definition  suggests  at  once  what  it 
would  seem  unnecessary  to  dwell  upon,  that  though 
a  corporation  is  a  person,  it  is  not  the  same  kind  of 
person  as  a  human  being,  and  need  not  of  necessity 
—  nay,  in  the  very  nature  of  things,  cannot — enjoy 
all  the  rights  of  such  or  be  governed  by  the  same 
laws.  When  the  law  says,  "  Any  person  being  of 
sound  mind  and  of  the  age  of  discretion  may  make 
a  will,  or  "  any  person  having  arrived  at  the  age  of 
majority  may  marry/'  I  presume  the  most  ardent 
advocate  of  equality  of  protection  would  hardly 
contend  that  corporations  must  enjoy  the  right  of 
testamentary  disposition  or  of  contracting  matri 
mony. 

The  equality  between  persons  spoken  of  in  the 
Fourteenth  Amendment  obviously  means  equality 
between  persons  of  the  same  nature  or  class,  and 

*  Book  I.,  p.  123. 
197 


ARGUMENT 

not  equality  between  persons  whose  very  natures 
are  absolutely  dissimilar, —  equality  between  human 
beings,  if  the  rights  of  natural  persons  are  involved; 
equality  between  corporations  of  the  same  class,  if 
the  rights  of  artificial  persons  are  involved.  The 
whole  history  of  the  Fourteenth  Amendment 
demonstrates  beyond  dispute  that  its  whole  scope 
and  object  was  to  establish  equality  between  men, — 
an  attainable  result,  —  and  not  to  establish  equality 
between  natural  and  artificial  beings — an  impossible 
result. 

The  evolution  of  the  Fourteenth  Amendment 
began  with  the  first  Civil  Rights  Bill,  which  provided 
that — 

"  All  persons  born  in  the  United  States  .  .  .  are 
hereby  declared  to  be  citizens  of  the  United  States, 
and  such  citizens  of  every  race  and  color  .  .  .  shall 
have  the  same  right  in  every  State  and  Territory  in 
the  United  States  to  make  and  enforce  contracts,  to 
sue,  be  parties,  and  give  evidence,  to  inherit,  pur 
chase,  lease,  sue,  hold,  and  enjoy  real  and  personal 
property,  and  to  the  full  and  equal  benefit  of  all  laws 
and  proceedings  for  the  security  of  person  and  prop 
erty  as  is  enjoyed  by  WHITE  citizens." 

That  this  law  was  intended  to  establish  equality 
between  men  in  their  individual  capacity,  and  had 
no  reference  to  equality  between  men  and  corpora 
tions,  is  too  plain  for  argument.  The  law  took  the 
rights  of  a  white  citizen  as  the  standard  of  measure 
ment,  and  simply  commanded  that  the  rights  of  all 

198 


IN   THE    RAILROAD    TAX    CASES 

other   citizens,  whatever  their  race  or  color,  should 
be  equal  to  his. 

After  the  adoption  of  the  Fourteenth  Amend 
ment,  Congress  passed  the  second  Civil  Rights  Bill, 
which  gave  at  once  legislative  interpretation  and 
enforcement  to  the  amendment.  It  provides  that  — 

"  All  persons  within  the  jurisdiction  of  the  United 
States  shall  have  the  same  right  in  every  State  and 
Territory  in  the  United  States  to  make  and  enforce 
contracts,  to  sue,  be  parties,  give  evidence,  and  to 
the  full  and  equal  benefit  of  all  laws  and  proceedings 
for  the  security  of  persons  and  property  as  is  enjoyed 
by  white  citizens,  and  shall  be  subject  to  like  punish 
ment,  pains,  penalties,  taxes,  licenses,  and  exactions 
of  every  kind,  and  to  none  other." 

That  this  again  was  intended  to  establish  equality 
between  natural  persons  is,  to  my  mind,  equally 
plain.  The  standard  taken  by  the  law  is  a  white 
citizen  and  his  rights  and  obligations.  To  this 
standard  the  law  raises  the  rights,  and  by  it  meas 
ures  the  obligations,  of  all  persons  within  the  State 
or  Territory. 

Could  Congress  have  by  any  possibility  meant  to 
confer  upon  artificial  persons  the  same  rights  in  the 
respects  enumerated  as  were  enjoyed  by  white  citi 
zens  ?  Could  it,  for  instance,  have  meant  that  a 
corporation  should  have  the  same  right  to  "give 
evidence  "  as  a  white  citizen  ?  And  as  to  contracts, 
may  not  the  State  which  creates  corporations  impose 
certain  limitations  upon  their  right  or  power  to  make 

199 


ARGUMENT 

contracts  ?  Because  the  right  of  a  white  citizen  to 
make  a  contract  extends  to  all  things  not  forbidden 
by  law,  must  the  right  of  a  corporation  be  coexten 
sive  with  it?  Under  this  leveling  statute  was  it 
intended  to  abolish  the  right  of  a  State  to  impose 
terms  and  limits  upon  its  own  creatures  ? 

Again,  as  to  burdens  :  The  statute  says  that  the 
taxes,  licenses,  and  exactions  of  every  kind,  and 
none  other,  which  are  demanded  from  white  citizens 
shall  be  demanded  from  all  persons  within  the  State 
or  Territory.  Here  the  burden  to  which  a  white 
citizen  is  subjected  is  the  standard  of  measurement. 
To  justify  a  tax,  license,  or  exaction,  it  must  first  be 
shown  that  it  is  demanded  from  white  citizens.  If 
it  is  not,  it  cannot  be  demanded  from  any  other 
person  within  the  State.  Was  this  meant  to  apply 
to  corporations  ?  Was  it  intended  that  corporations 
should  be  subjected  to  no  tax,  license,  or  exaction 
that  was  not  imposed  upon  white  citizens,  "  any  law 
or  statute  ...  to  the  contrary  notwithstanding  "  ? 

It  is  certain  that  this  law  has  never  been  so  under 
stood  or  interpreted  by  any  State.  And  if  it  is  now 
so  to  be  interpreted,  what,  I  ask,  is  to  become  of 
the  vast  mass  of  legislation  in  all  the  States  by 
which  taxes,  licenses,  and  exactions  are  demanded 
from  corporations  where  none  whatever  is  demanded 
from  white  citizens  ?  To  take  a  single  illustration  : 
By  a  statute  of  Massachusetts  every  savings-bank 
incorporated  under  the  laws  of  the  commonwealth 
pays  a  tax  of  one  and  one  half  per  cent,  on  its 


200 


IN   THE    RAILROAD    TAX    CASES 

deposits.  No  such  tax  is  imposed  upon  any  indi 
vidual  or  white  citizen.  This  Court  has  held  that 
this  was  a  tax  on  the  corporation — the  person.  It 
said :  "  The  subject-matter  to  be  taxed  is  the  cor 
poration,  and  the  average  amount  of  deposits  within 
the  period  named  furnishes  the  basis  of  computing 
the  amount."  If  the  corporation  is,  under  this 
law,  to  be  subjected  to  such  taxes  as  are  imposed 
upon  white  citizens,  and  none  other^  how  could  this 
tax  in  Massachusetts  be  upheld  ? 

That  the  Fourteenth  Amendment  was  intended 
to  secure  eqality  between  persons  which,  in  the 
nature  of  things,  were  equal,  and  not  between  one 
class  of  persons  and  another  class  entirely  dissimi 
lar,  seems  so  plain  that  the  defendant  itself  is  at 
times  compelled  to  admit  it.  As  good  a  definition 
as  I  could  desire  of  the  meaning  of  the  words 
"  equal  protection  of  the  law,"  I  find  in  the  argu 
ments  formerly  delivered  here  in  the  San  Mateo 
case  by  the  learned  gentlemen  opposite. 

Mr.  Sanderson  there  says :  "  I  believe  that  the 
clause  in  relation  to  equal  protection  means  the  same 
thing  as  the  plain  and  simple  yet  sublime  words 
found  in  our  Declaration  of  Independence,  call 
men  are  created  equal/  Not  equal  in  physical  or 
mental  power,  not  equal  in  fortune  or  social  posi 
tion,  but  equal  before  the  law."  Mr.  Edmunds, 
speaking  on  the  same  occasion  of  this  amendment, 
said  that  it  was  a  "  broad  and  catholic  provision  for 
universal  security,  resting  upon  citizenship  as  it 

201 

N 


ARGUMENT 

regarded  political  rights,  and  resting  upon  human 
ity  as  it  regarded  private  rights." 

To  these  lofty  sentiments  I  beg  leave  to  give  my 
humble  concurrence.  To  these,  as  correct  state 
ments  of  the  broad  meaning  and  generous  scope  of 
the  Fourteenth  Amendment,  I  yield  my  fullest 
assent.  Standing  in  this  presence,  I  would  not 
attempt  to  dwarf  the  proportions  of  that  historic 
provision  by  seeking  to  restrict  its  beneficent  opera 
tion  to  a  particular  class  or  race.  No.  The  law  is 
as  broad  as  humanity  itself.  Wherever  man  is  found 
within  the  confines  of  this  Union,  whatever  his 
race,  religion,  or  color,  be  he  Caucasian,  African,  or 
Mongolian,  be  he  Christian,  infidel,  or  idolater,  be 
he  white,  black,  or  copper-colored,  he  may  take 
shelter  under  this  great  law  as  under  a  shield  against 
individual  oppression  in  any  form,  individual  injus 
tice  in  any  shape.  It  is  a  protection  to  all  men 
because  they  are  men,  members  of  the  same  great 
family,  children  of  the  same  omnipotent  Creator. 
In  its  comprehensive  words  I  find  written  by  the 
hand  of  a  nation  of  sixty  millions  in  the  firmament 
of  imperishable  law  the  sentiment  uttered  more 
than  a  hundred  years  ago  by  the  philosopher  of 
Geneva,  and  re-echoed  in  this  country  by  the  authors 
of  the  Declaration  of  the  Thirteen  Colonies,  pro 
claiming  to  the  world  the  equality  of  man.  And 
realizing  the  dream  of  the  poet,  the  philosopher, 
and  the  philanthropist,  it  may  be  that  this  great 
statute  is  destined  to  usher  in  the  dawn  of  that  era 


202 


IN   THE    RAILROAD    TAX    CASES 

when  national  antipathies  and  animosities  shall  be 
appeased,  national  boundaries  and  barriers  obliter 
ated,  and,  under  a  system  of  universal  justice,  man 
shall  be  allowed  to  claim  from  man,  in  all  climes 
and  in  all  countries,  equal  protection,  equal  security, 
and  equal  rights. 

What,  then,  must  a  State  of  this  Union  do  in 
order  to  bear  its  share  in  carrying  out  the  behests 
of  this  great  commandment,  that  all  men  shall  be 
equal — shall  receive  the  equal  protection  of  the 
Jaws  ?  The  State  must  see  to  it  that  no  man,  no 
class,  no  order  of  men  are  granted  privileges,  immu 
nities,  distinctions  which  are  denied  upon  the  same 
terms  to  others ;  that  no  rank  or  superiority  is 
accessible  to  one  which  is  not  upon  equal  conditions 
within  the  reach  of  all ;  that  no  badge  of  invidious 
discrimination  or  humiliating  inferiority  is  affixed  to 
any,  the  humblest  member  of  the  commonwealth. 
The  State  must  see  to  it  that  the  avenues  leading  to 
happiness  are  left  equally  open  to  all ;  that  what 
ever  pursuit  is  lawful  for  one  is  lawful  equally  for 
all ;  that  whatever  hopes,  aspirations,  ambitions  are 
licit  for  the  most  exalted  shall  be  equally  licit  for 
the  most  humble ;  that  into  whatever  paths  leading 
to  profit,  place,  or  honor  one  man  may  venture  to 
tread,  all  may  upon  an  equal  footing  venture.  To 
attain  and  accomplish  all  these  ends  in  all  the  States 
is,  I  conceive,  in  some  degree,  the  object  of  the 
Fourteenth  Amendment.  Its  mission  was  to  raise 
the  humble,  the  down-trodden,  and  the  oppressed 

203 


ARGUMENT 

to  the  level  of  the  most  exalted  upon  the  broad 
plane  of  humanity, — to  make  man  the  equal  of  man; 
but  not  to  make  the  creature  of  the  State  —  the  bodi 
less,  soulless,  and  mystic  being  called  a  corporation 
—  the  equal  of  the  creature  of  God. 

It  is  said  on  the  other  side  that  a  corporation  is 
composed  of  human  beings  ;  that  these  do  not  cease 
to  be  such  by  becoming  members  of  the  corporation  ; 
that  they  still  continue,  therefore,  to  be  entitled  as 
before  to  the  equal  protection  of  the  laws. 

I  answer  that  by  the  very  act  of  incorporation 
these  human  beings  receive  rights,  immunities,  privi 
leges  which  form  a  part  of  the  sovereign  attributes 
of  the  State,  and  which  are  not  enjoyed  by  any 
man  in  his  individual  capacity.  By  the  very  act  of 
incorporation  the  equality  between  the  corporate 
body — the  group  of  corporate  members,  if  you 
please — and  isolated  individuals  is  effectually  de 
stroyed.  To  enumerate  no  other,  the  State  may 
grant  to  the  corporation  the  right  of  eminent 
domain — a  right  which  is  possessed  by  no  individ 
ual  in  the  State.  They — the  corporation,  or,  if  you 
please,  the  group  of  corporate  members — take  these 
discriminating  privileges  in  their  corporate  capacity, 
asserting,  and  properly,  that  the  equality  between 
men  is  not  thereby  destroyed  because  the  privileges 
are  granted  to  the  corporation  and  not  to  the  indi 
vidual  ;  and  yet,  when  it  comes  to  discriminating 
burdens  imposed  upon  the  corporation, —  or,  if  you 
please,  the  group  of  corporate  members, —  they 

204 


IN    THE    RAILROAD    TAX    CASES 

claim  that  the  burdens  are  imposed  upon  the  indi 
viduals,  and  not  upon  the  corporation.  I  cannot 
conceive  the  reasoning  by  which  a  corporation  is 
treated  as  a  unit  for  the  purpose  of  absorbing  privi 
leges  which  the  sovereign  grants,  but  must  be  looked 
upon  as  disintegrated  into  its  component  parts  for  the 
purpose  of  bearing  burdens  which  the  sovereign 
imposes. 

Therefore,  I  venture  to  repeat  that  the  Four 
teenth  Amendment  does  not  command  equality 
between  human  beings  and  corporations ;  that  the 
State  need  not  subject  corporations  to  the  same  laws 
which  govern  natural  persons ;  that  it  may,  without 
infringing  the  rule  of  equality,  confer  upon  corpora 
tions  rights,  privileges,  and  immunities  which  are 
not  enjoyed  by  natural  persons ;  that  it  may,  for 
the  same  reason,  impose  burdens  upon  a  corporation, 
in  the  shape  of  taxation  or  otherwise,  which  are  not 
imposed  upon  natural  persons ;  that  taxes,  whatever 
shape  they  assume, — whether  in  terms  levied  upon 
property,  business,  or  income, —  are  always,  essen 
tially,  a  charge  upon  persons,  —  a  contribution 
required  by  the  State  from  those  who  receive  the 
benefits  of  its  government ;  that  property,  business, 
income  are  mere  standards  to  measure  the  liability 
of  the  person  taxed;*  that  the  rule  of  equality 

*  "The  tax,"  says  Burroughs,  "is  a  contribution  required  of  its 
citizens  by  the  State,  and  when  it  is  measured  as  to  its  amount,  by 
the  value  or  the  productiveness  of  the  property,  it  is  still  a  tax  on 
the  person,  and  there  is  a  personal  liability  of  the  person  assessed 

205 


ARGUMENT 

requires  only  that  equality  shall  be  observed  among 
taxables  of  the  same  class ;  that  therefore  a  tax 
of  two  per  cent,  on  the  value  of  its  property,  the 
quantity  of  its  business,  or  the  amount  of  its  income 
might  well  be  imposed  upon  a  corporation,  whilst  a 
tax  of  only  one  per  cent,  is  imposed  upon  the  prop 
erty,  business,  or  income  of  a  natural  person,  even 
though  the  nature  and  character  of  the  property, 
business,  or  income  were  the  same. 

That  equal  protection  does  not  require  that  cor 
porations  should  be  governed  by  the  same  laws 
as  natural  persons,  and  that  burdens  may  be  imposed 
upon  the  former  when  under  precisely  similar  cir 
cumstances  none  are  imposed  upon  the  latter,  is 
fully  illustrated  by  the  recent  decision  of  this  Court 
in  Missouri  Pacific  Railroad  Company  vs.  Humes. 
The  action  arose  under  a  statute  of  Missouri  which 
provides  that  "  every  railroad  corporation  .  .  .  shall 

with  the  tax.  The  individual,  and  not  his  property,  pays  the 
tax.  The  property  is  resorted  to  for  the  purpose  of  ascertaining 
the  amount  of  the  tax  with  which  the  owner  must  be  charged. 
The  tax  is  imposed  upon  the  person  of  the  owner  on  account 
of  his  ownership  of  the  property."  (Burroughs  on  Taxation, 
sec.  9.) 

"Reference  to  the  average  amount  of  deposits  is  made,"  says 
the  Supreme  Court  of  the  United  States  in  Providence  Institution 
vs.  Massachusetts  (6  Wall.,  623),  "not  as  a  description  of  the 
subject  to  be  assessed,  but  as  furnishing  a  basis  of  computing  the 
amount  of  the  tax  to  be  paid  by  the  corporation.  The  subject 
matter  to  be  taxed  is  the  corporation,  and  the  average  amount  of 
the  deposits  within  the  period  named  furnishes  the  basis  of  comput 
ing  the  amount." 

206 


IN   THE    RAILROAD    TAX    CASES 

erect  and  maintain  lawful  fences  on  the  sides  of  the 
road,  .  .  .  and  until  fences  .  .  .  shall  be  made 
and  maintained,  such  corporation  shall  be  liable  in 
double  the  amount  of  all  damages  "  done  by  it  to 
animals  on  the  road.  The  plaintiff's  mule  having 
been  killed  on  defendant's  road  by  reason  of  the 
corporation's  neglect  to  build  fences,  a  judgment  in 
double  the  amount  of  its  value  was  rendered  in  the 
court  below.  The  defendant  was  a  railroad  corpora 
tion.  On  error  it  was  urged  that  this  statute  de 
prived  the  defendant  of  the  equal  protection  of  the 
laws. 

I  have  no  access  to  the  arguments,  but  I  presume 
the  contention  was  identical  with  that  of  the  defend 
ant  in  the  case  at  bar,  namely, — that  a  corporation 
was  a  person,  and  entitled  to  immunity  from  all 
burdens  which  were  not  under  similar  circumstances 
imposed  upon  natural  persons ;  that  the  statute  im 
posed  a  penalty  upon  corporations  where  for  the 
same  identical  trespass  it  imposed  none  upon  an 
individual ;  that  if  an  individual  owned  a  railroad, 
and  through  his  neglect  to  build  fences  an  animal 
was  killed,  he  was  not  subjected  to  double  damages, 
but  under  identically  the  same  circumstances  a 
corporation  was  so  subjected ;  that  this,  therefore, 
was  an  injurious  discrimination  against  corporations. 
But  this  Court,  speaking  through  Mr.  Justice  Field, 
said: — 

"The  objection  that  the  statute  of  Missouri  vio 
lates  the  clause  of  the  Fourteenth  Amendment, 

207 


ARGUMENT 

which  prohibits  a  State  to  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  laws,  is 
as  untenable  as  that  which  we  have  considered.  The 
statute  makes  no  discrimination  against  any  railroad 
company  in  its  requirements.  Each  company  is 
subject  to  the  same  liability,  and  from  each  the  same 
security,  by  the  erection  of  fences,  gates,  and  cattle- 
guards,  is  exacted,  when  its  road  passes  through, 
along,  or  adjoining  inclosed  or  cultivated  fields 
or  uninclosed  lands.  There  is  no  evasion  of  the 
rule  of  equality  where  all  companies  are  subjected 
to  the  same  duties  and  liabilities  under  similar 
circumstances.  See,  on  this  point,  Barbier  vs. 
Connolly,  113  U.  S.  27,  and  Soon  Hing  vs.  Crowley, 
Id.  703." 

I  have  hitherto  argued  this  cause  upon  the 
assumption  that  the  State  has  the  right  to  subject 
railroad  property  or  the  property  of  a  railroad 
corporation  to  a  system  of  taxation  which  may  be 
more  burdensome  than  that  applicable  to  private 
property.  I  have  endeavored  to  show  that  such  a 
discrimination  would  be  entirely  justifiable.  I  shall 
now  strive  to  demonstrate  that  under  the  Consti 
tution  and  laws  of  California  applicable  to  the 
condition  of  the  defendant  here  there  is  no  such 
discrimination. 

It  is  assumed  in  the  judgment  rendered  here  that 
the  revenue  system  of  California  does  make  such  a 
discrimination,  and  thereby  works  great  injustice 
upon  railroad  corporations,  from  the  asserted  fact 
that  under  it  they  are  made  to  bear  a  heavier  load 

208 


XTNI  V 


IN    THE    RAILROAD    TAX    CASES 


of  the  public  burdens  than  they  would  if  assessed  as 
individuals  are.  It  is  affirmed  by  counsel  for 
defendant  that  to  injure  these  corporations  was  the 
mainspring  of  these  provisions.  It  is  said  in  the 
opinion  rendered  here  :  — 

"  The  railroad  companies  in  California  are  taxed 
yearly  to  an  amount  exceeding  six  hundred  thou 
sand  dollars.  Their  property  is  heavily  incumbered 
with  mortgages  amounting  to  much  more  than  its 
value.  Why  should  they  not  be  allowed  by  law,  if 
they  pay  this  sum,  to  credit  it  on  their  mortgages,  as 
any  natural  person  paying  it  would  be  allowed?  Why 
should  this  unjust  discrimination  be  made  against 
them?  Why  should  they,  by  law,  be  denied  a  credit 
for  this  more  than  six  hundred  thousand  dollars  a 
year  ?  Is  there  any  justice  in  this  denial?  .  .  .  Why, 
then,  should  not  this  system  be  pursued?  The  State 
would  then  collect  all  the  taxes  which  it  ought  to 
collect  ;  the  tax  being  a  lien  upon  the  property  could 
be  enforced  by  a  sale  of  the  property,  just  as  though 
it  was  levied  on  the  property,  and  not  upon  the 
mortgages.  If  the  companies  should  then  pay  the 
tax,  they  could  by  law  claim  credit  for  it  on  their 
mortgages,  and  it  would  be  deducted  in  the  payment  of 
the  interest  or  principal  of  the  bonds.  Then  justice 
would  be  done  to  the  corporations,  as  it  is  done  to 
individuals."  * 

The  whole  point  of  this  asserted  discrimination 
and  injustice  lies  in  the  assumption  that  if  railroads 
were  assessed  as  other  property  is  the  mortgagees 

*  Record,  pp.  112,  113. 

209 


ARGUMENT 

would  be  bound  to  pay  the  tax  on  the  mortgage 
interest ;  and  if,  to  protect  itself,  the  company  paid  it, 
it  would  be  entitled  to  recover  it  from  the  mort 
gagees,  or  to  a  credit  for  it  upon  the  mortgage  debt. 
The  injustice  charged  against  the  Constitution  of  Cal 
ifornia  "  hath  this  extent,  no  more."  If,  therefore, 
it  shall  be  shown  that  if  the  property  of  this  corpo 
ration  were  assessed  as  that  of  private  individuals  is 
assessed  the  corporation  would  still  be  compelled  to 
pay  the  tax  on  the  mortgage  interest, — if  it  shall  be 
made  manifest  that  in  this  case,  were  the  mortgage 
interest  assessed  to  the  mortgagees,  the  corporation 
and  not  the  mortgagees  would  have  to  pay  the  tax  on 
that  interest, — if  it  shall  be  demonstrated  that,  were 
the  mortgage  interest  assessed  to  the  mortgagees 
and  the  corporation  paid  the  tax  thereon,  it  never 
could  recover  the  amount  of  that  tax  back  from 
the  mortgagees,  nor  get  credit  for  it  on  its  debt, 
then  will  these  charges  of  wrong  fall  to  the  ground, 
these  phantoms  of  injustice  vanish.  That  this  dem 
onstration  can  be  made  is,  to  my  mind,  plain. 

Upon  the  face  of  the  mortgage  in  this  case  is  the 
covenant  to  which  I  have  already  alluded.  Under 
that  covenant,  as  I  have  shown,  the  mortgagor  is 
bound  under  the  laws  of  California  to  pay  the 
taxes  levied  upon  the  mortgage  interest.  Under 
those  laws,  if  the  mortgage  interest  was  assessed  to 
the  mortgagee,  and  he  paid  the  tax,  he  would  be 
entitled  to  recover  from  the  mortgagor  the  amount 
so  paid.  And  this,  as  I  have  shown,  is  authorita- 

210 


IN    THE    RAILROAD    TAX    CASES 

tively  settled  by  the  decision  of  the  Supreme  Court 
of  California.* 

The  Circuit  Court,  however,  in  the  case  at  bar, 
without  referring  to  this  decision,  held  that  under 
the  laws  of  California  the  covenant  in  question 
would  not  have  the  operation  given  it  by  the 
Supreme  Court  of  that  State.  But  it  is  submitted 
that  the  decision  of  the  highest  judicial  tribunal  of 
a  State  upon  a  question  of  the  meaning  or  operation 
of  its  own  Constitution  and  laws,  where  no  rights 
arising  under  the  Constitution,  treaties,  or  laws  of 
the  United  States  are  involved,  is  binding  upon  the 
Federal  Courts. 

I  have  now  done.  I  am  conscious  of  having 
occupied  no  inconsiderable  portion  of  the  time 
allotted  by  the  Court  for  the  argument, — not  longer, 
I  hope,  however,  than  the  importance  of  the  ques 
tions  at  issue  warrants.  In  saying  this  I  am  not 
unmindful  of  the  propensity  of  counsel  to  magnify 
their  causes.  Self-complacency  is  ever  ready  to 
whisper  exaggerated  notions  of  the  magnitude  of 
our  undertakings.  Yet  I  cannot  but  think  that  the 
controversy  now  debated  before  your  Honors  is  one 
of  no  ordinary  importance.  It  is  important  to  the 
people  of  California,  not  only  on  account  of  the  very 
large  amount  at  stake,  but  more,  for  that  it  involves 
the  validity  of  their  laws  and  Constitution.  It  is 
important  to  the  many  States  whose  revenue  systems, 
similar  to  that  of  California,  are  menaced  by  the 
*  Beckman  vs.  Skaggs,  59  Cal.  541. 

211 


ARGUMENT 

same  attack.  It  is  important  to  every  State  of  this 
Union  whose  sovereign  attribute  of  taxation  is  here 
challenged. 

That  your  Honors  may  now  take  the  questions 
discussed  from  the  region  of  controversy  in  which 
they  have  been  agitated  for  the  last  six  years  and 
place  them  in  the  realm  of  fixed  law,  these  cases 
are  now  submitted  for  decision. 


212 


POLITICAL 


THE  following  speech  was  delivered  in  the  city  of  Santa  Cruz 
on  the  evening  of  Monday,  November  5,  1900, — the  day  before 
the  Presidential  election. 


SPEECH    AT    SANTA    CRUZ 

MR.  CHAIRMAN,  LADIES  AND  GENTLEMEN:  No 
one  familiar  with  current  events  can  fail  to  perceive 
that  the  public  mind  throughout  the  United  States 
is  undergoing  to-day  an  unwonted  agitation.  The 
mere  fact  that  we  are  in  the  midst  of  a  Presidential 
campaign  is  inadequate  to  account  for  this  condition. 
The  people  realize  that  questions  of  far  greater 
magnitude  than  those  usually  discussed  in  such  con 
tests  are  presented  for  solution.  The  issue  is  not, 
as  of  old,  what  particular  lines  of  policy  upon  mat 
ters  of  finance,  commerce,  or  internal  government 
shall  be  pursued.  It  is,  rather,  whether  the  repub 
lic  itself  shall  continue  to  exist, — whether  the  funda 
mental  principles  upon  which  the  Government  was 
originally  established  and  the  cardinal  rules  of  policy 
by  which  it  has  been  successfully  built  up  for  more 
than  a  century  are  now  to  be  abandoned, — whether 
instead  of  continuing  to  be  hereafter,  as  we  hitherto 
have  been,  the  lofty  ideal  of  the  self-governing 
peoples  of  the  world,  we  shall  turn  our  back  upon 
the  teachings  and  achievements  of  the  past,  and 
acknowledging  that  the  government  of  the  people, 

215 


SPEECH 

by  the  people,  for  the  people  is  a  failure,  become 
henceforth  proselytes  of  the  doctrines  and  imitators 
of  the  policies  of  the  monarchies  of  Europe. 

The  question  is.  Shall  our  Government  be  a  gov 
ernment  of  justice  or  of  injustice,  of  liberty  or  of 
tyranny,  of  equality  or  of  despotism,  —  in  one 
word,  shall  it  be  a  republican  government  or  an 
imperial  oligarchy? 

Nearly  two  and  a  half  years  ago, — on  the  25th 
of  May,  1898,  or  when  the  sound  of  Dewey's  vic 
torious  cannon  in  Manila  Bay  had  scarce  yet  died 
upon  our  ears, — in  a  thoughtful  address  to  the 
graduating  class  of  Stanford  University,  President 
Jordan  said: — 

"  We  have  followed  the  spirit  of  Washington's 
address  for  a  hundred  years,  until  the  movement  of 
history  has  brought  us  to  the  parting  of  the  ways. 
Federalism  or  imperialism  —  which  shall  it  be  ?  Let 
ours  be  sober,  fearless,  prayerful  choice.  The  federal 
republic — the  imperial  republic — which  shall  it  be?" 

About  two  years  afterward, —  on  the  ijth  of  last 
April, —  George  F.  Hoar,  of  Massachusetts,  speak 
ing  from  his  place  in  the  Senate  in  opposition  to  the 
imperialistic  policy  to  which  the  Republican  party 
had  committed  itself,  said: — 

"  I  believe,  Mr.  President,  that  perseverance  in 
this  policy  will  be  the  abandonment  of  the  prin 
ciples  upon  which  our  Government  is  founded; 
that  it  will  change  our  republic  into  an  empire; 
that  our  methods  of  legislation,  of  diplomacy,  of 

216 


AT   SANTA  CRUZ 

administration  must  hereafter  be  those  which  be 
long  to  empires,  and  not  those  which  belong  to 
republics. 

"Whether  the  inestimable  and  imperishable  prin 
ciples  of  human  liberty  are  to  be  trampled  down  by 
the  American  republic,  and  whether  its  great  bul 
wark  and  fortress,  the  American  Constitution,  im 
pregnable  from  without,  is  to  be  betrayed  from 
within,  is  our  question  now." 

The  importance  of  this  issue  is  best  stated  in  the 
language  which  Senator  Hoar  used  in  the  same 
speech,  when  he  said: — 

"I  do  not  underrate  the  importance  of  this  issue: 
it  is  greater  than  parties,  greater  than  administra 
tions,  greater  than  the  happiness  or  prosperity  of  a 
single  generation." 

Whether  put,  then,  in  the  words  of  President 
Jordan  or  of  Senator  Hoar,  the  question  presented 
to  the  American  people  to-day  is  ever  the  same. 
It  is,  "whether  we  will  change  our  republic  into  an 
empire,"  whether  "  our  methods  of  legislation,  of 
diplomacy,  of  administration  must  hereafter  be  those 
which  belong  to  empires,  and  not  those  which  belong 
to  republics,"  and,  in  fine,  "  whether  the  inestimable 
and  imperishable  principles  of  human  liberty  are  to 
be  trampled  down  by  the  American  republic,  and 
whether  its  great  bulwark  and  fortress,  the  Ameri 
can  Constitution,  impregnable  from  without,  is  to 
be  betrayed  from  within." 

This,  then,  is  the  question.  And,  to  quote  once 
217 


SPEECH 

more  from  Senator  Hoar,  it  "is  our  question  now." 
It  is  at  our  door.  It  will  brook  no  delay.  It 
must  be  answered,  and  answered  now.  All  history 
teaches  that  the  course  of  tyranny  once  begun  is 
ever  onward.  It  never  takes  a  step  backward.  If 
it  pauses,  it  is  only  when  it  reaches  the  precipice  or 
is  overwhelmed  in  the  abyss  of  revolution.  Four 
years  from  now  the  supporters  and  beneficiaries  of 
imperialism  will  be  intrenched  behind  such  bul 
warks  of  wealth,  patronage,  and  power,  and  defended 
by  such  retainers,  as  to  laugh  to  scorn  all  consti 
tutional  efforts  to  dislodge  or  even  disturb  them. 
They  will  be  permanently  enthroned.  The  out 
ward  form  of  a  republic  may  still  for  a  while  be 
maintained ;  but  the  spirit  of  the  Constitution  will 
be  dead,  and  the  sublime  truth  of  the  Declaration 
of  Independence,  that  all  men  are  created  equal, 
will  have  become  the  butt  of  jesters,  and  the  laughing 
stock  of  buffoons. 

Since,  then,  all  wisdom  and  experience  teach  that 
our  choice  must  be  made,  and  made  now,  let  us, 
like  brave  men,  look  our  reponsibility  calmly  in  the 
face.  In  the  language  of  President  Jordan,  "  let 
ours  be  sober,  fearless,  prayerful  choice."  Called 
upon  to  abandon  the  old  for  the  new,  invited  to 
discard  tried  and  approved  principles  and  policies 
of  government  for  novel  and  untried  experiments, 
let  us  calculate  the  prospect  of  bettering  our  condi 
tion  by  the  change.  To  that  end,  let  us  first  exam 
ine  how  we  have  fared  under  the  ancient  system. 

218 


AT   SANTA   CRUZ 

Not'  so  very  many  years  ago,  if  time  be  meas 
ured  by  national  existence,  the  Fathers  established 
a  government  upon  principles  as  yet  untried  in 
political  science — principles  whose  operation  was 
looked  upon  with  secret  anxiety  by  friends  and 
open  derision  by  enemies.  One  hundred  and  eleven 
years  have  elapsed;  and  now  the  result  of  the 
experiment  is  open  to  the  contemplation  of  the 
world.  The  republic,  built  upon  those  principles 
and  reared  aloft  in  accordance  with  the  maxims  of 
the  policy  to  which  they  gave  rise,  still  stands, — 
stands,  silencing  by  its  achievements  the  doubts  of 
the  incredulous  and  exceeding  the  hopes  of  the 
well-wishers, — stands,  eclipsing  the  most  renowned 
governments  of  ancient  and  of  modern  times, — 
stands  in  its  unity,  its  grandeur,  and  its  might, 
crowned  with  the  double  diadem  of  liberty  and 
equality. 

The  world  beholds  what  has  been  done  in  little 
more  than  a  century  of  national  life.  The  territory 
of  the  original  thirteen  States,  stretched  at  first  like 
a  slender  rim  along  the  Atlantic  seaboard,  having  by 
gradual  and  legitimate  expansion  reached  the  nat 
ural  limitations  of  the  Gulf  and  the  Rio  Grande  on 
the  south  and  the  waters  of  the  Pacific  on  the  west, 
comprises  now  within  its  confines  a  continuous  and 
unbroken  area  within  the  temperate  zone,  with 
which  the  vast  empire  of  Rome  in  the  zenith  of  its 
splendor  is  not  to  be  compared.  The  population, 
in  little  more  than  a  century,  has  been  multiplied 

219 


SPEECH 

over  twenty-fold,  until  now  its  inhabitants  surpass 
the  amazing  figure  of  seventy-five  millions.  Civili 
zation  and  the  arts  of  peace  have  gone  hand  in 
hand  with  increasing  numbers  and  territorial  expan 
sion.  In  agriculture  the  nation  stands  easily  in  the 
lead.  Commerce,  starting  at  first  from  slender 
beginnings,  but  acquiring  power  with  each  revolving 
year,  distances  to-day  that  of  hitherto  unrivaled 
England  herself.  Manufactures,  drawing  their 
materials  from  the  cotton-fields  of  the  South,  the 
deposits  of  coal,  iron,  and  copper  of  the  Middle 
West  and  the  Northwest,  and  the  gold  and  silver 
mines  of  the  Pacific  Slope,  take  the  first  place  in  the 
world's  contest  for  supremacy,  supplying  the  globe 
with  the  products  of  their  looms,  their  furnaces,  and 
their  mills,  furnishing  with  equal  facility  and  profu 
sion  textile  fabrics  to  the  inhabitants  of  the  Orient, 
ships  of  war  to  the  Mikado,  rails  and  locomotives 
to  the  ironways  of  the  Great  White  Czar.  Educa 
tion  keeps  pace  with  the  march  of  territorial,  agri 
cultural,  commercial,  and  manufacturing  progress. 
In  every  hamlet  a  schoolhouse,  in  every  town  a 
college,  and  in  the  more  favored  centers  of  popula 
tion  those  wonderful  institutions  of  higher  learning 
which,  though  of  recent  growth,  challenge  compari 
son  with  the  famed  universities  of  the  Old  World  — 
with  Bonn  and  Gottingen  and  Heidelberg,  with 
Cambridge*  and  with  Oxford — and  place  at  the  head 
of  the  most  advanced  educational  movement  Yale 
and  Harvard,  Cornell,  Princeton,  and  Hopkins, — 


220 


AT   SANTA    CRUZ 

aye,  and  the  giant  twin  brothers  of  the  West,  our 
own  Berkeley  and  Palo  Alto.  But  beyond  and 
above  all,  this  nation  of  seventy-five  millions  of 
people,  after  passing  through  the  varied  vicissitudes, 
political  strifes,  and  armed  conflicts  of  the  first 
century  of  its  existence,  is  still  united,  homoge 
neous  and  free,  speaking  the  same  language,  worship 
ing  the  same  God,  pursuing  the  same  ideals  of 
private  and  public  excellence,  governed  in  its 
national  concerns  by  a  uniform  legislation,  enjoying 
the  blessings  of  a  liberal  Constitution,  and  dispens 
ing  justice  under  wise  and  impartial  laws, — so 
strong,  so  resourceful  withal,  as  to  daunt  the 
thought  of  attack  from  without,  and  be  secure 
against  all  dangers  from  within — all,  save  the  perils 
of  degeneracy — the  decay  which  comes  from  the 
abandonment  of  lofty  ideals,  from  the  pursuit  of 
groveling  and  low  desires,  from  the  desertion  of 
the  shrine  of  Liberty  to  worship  in  the  temple  of 
Mammon. 

Why  have  I  thus  gone  over  the  glorious  achieve 
ments  of  the  past?  Simply  to  lead  to  the  question, 
To  what  are  these  achievements  due?  and  to 
answer,  To  the  principles  upon  which  our  Govern 
ment  was  founded  and  to  the  rules  of  policy 
according  to  which  its  edifice  has  been  reared. 
Before  we  yield,  then,  to  the  invitation  to  change, 
let  us  make  sure  that  we  fully  appreciate  what  we 
are  called  upon  to  abandon,  and  know  what  were 
those  principles  and  what  those  rules  of  policy. 

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SPEECH 

The  one  basic  principle  upon  which  the  Fathers 
established  our  Government  is  found  in  the  simple 
but  sublime  utterance  of  the  Declaration  of  In 
dependence  that  "  all  men  are  created  equal." 
From  this  flow,  as  corollaries,  these  other  princi 
ples, — that  all  men  are  created  free;  that  the  con 
sent  of  the  governed  is  the  only  lawful  source  of 
the  powers  of  government;  that  the  State  recognizes 
equal  rights  in  all  and  special  privileges  in  none. 

The  essential  and  all-pervading  idea  of  the  policy 
inculcated  by  the  Fathers  is  found  in  that  sentence 
of  Washington's  Farewell  Address  in  which  he 
inculcated  upon  the  mind  of  the  people  that  our 
true  prosperity  must  ever  be  built  upon  a  basis  of 
exalted  justice.  Allied  to  this  one  idea  are  the 
other  truths  of  that  immortal  legacy, —  that  the 
maxim  that  honesty  is  the  best  policy  is  no  less 
applicable  to  public  than  to  private  affairs;  that 
the  public  faith  must  be  sacredly  preserved  and 
public  engagements  faithfully  carried  out;  that  our 
commerce  should  be  diffused  and  diversified  by 
gentle  means,  but  never  by  force;  that  the  Consti 
tution  should  be  sacredly  maintained;  that  we 
should  avoid  standing  armies,  as  force  is  the  vital 
principle  and  immediate  parent  of  despotism. 

These  are  the  fundamental  principles  of  govern 
ment,  these  the  essential  rules  of  internal  and 
external  policy,  which,  since  the  days  of  Washington 
and  Jefferson,  have  been  the  pole-star  under  whose 
guidance  our  prosperity  and  happiness  at  home  have 

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AT   SANTA   CRUZ 

been  secured,  our  commerce  diversified  and  ex 
tended,  and  our  relations  abroad  safely  and  honor 
ably  maintained.  These  are  the  tenets  common 
alike  to  the  Republican  and  the  Democratic  faith  — 
tenets  so  unquestioningly  assented  to  heretofore  by 
all  as  to  have  become  interwoven  with  the  very 
fabric  of  our  national  existence,  and  to  constitute 
the  truisms  of  our  political  science.  By  fidelity  to 
their  teachings  we  have  achieved  the  results  which 
the  world  beholds  with  amazement,  and  occupy 
to-day  the  position  of  the  most  enlightened,  the 
wealthiest,  and  the  mightiest  nation  of  the  globe. 
Before  we  abandon  them,  before  we  abjure  our 
ancient  creed  to  kneel  at  the  altar  of  new  divinities, 
it  behooves  us  to  inquire  what  we  are  to  receive  in 
exchange. 

What  is  offered  as  a  substitute?  Imperialism. 
What  is  imperialism  ?  The  term  is  new  in  our 
political  discussions.  It  has  a  strange  sound  to 
American  ears.  I  venture  to  give  you  the  idea 
which  it  conveys  to  me.  By  imperialism  I  under 
stand,  broadly,  a  government  so  constituted  and 
administered  that  the  people  are  governed  for  the 
benefit  of  a  privileged  class ;  a  government  in  which 
a  few  individuals,  having  possession  and  control  of 
the  government  machinery,  work  it  for  their  own 
exclusive  advantage;  a  government  in  which  the 
mass  of  the  people  are  made  to  bear  the  burdens  of 
the  state,  and  a  select  aristocracy  of  rank  or  plu 
tocracy  of  wealth  reap  the  benefits,  honors,  and 

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advantages.  It  matters  not  what  external  form 
this  government  may  assume.  I  care  not  whether 
it  presents  itself  in  the  garb  of  a  polite  and  refined 
monarchy,  as  it  did  in  France  during  the  epoch 
which  preceded  the  great  Revolution, — in  the  days 
when  the  nobility,  while  owning  all  the  land,  filling 
all  the  offices,  and  endowed  with  all  the  honors  of 
the  realm,  enjoyed  immunity  from  taxation,  and 
threw  all  the  burdens  of  government  upon  a 
wretched,  famished,  and  despairing  peasantry.  I  care 
not  whether  it  assumes  the  brutal  mien  of  an  undis 
guised,  avowed,  and  forthright  despotism,  as  it  did 
under  the  dominion  of  the  Romanoffs,  when  the 
ukase  of  the  Czar  was  the  sole  law  of  Russia.  I 
care  not  whether,  while  abridging  the  rights  of  the 
people  at  home  and  extending  the  privileges  of  a 
favored  class  by  accessions  abroad,  it  observes  the 
external  ceremonials  of  a  republic  and  masquerades 
with  decorous  mien  in  the  robes  of  liberty.  Of 
these  non-essentials  I  take  no  note.  If  the  govern 
ment  is  so  devised  and  operated  as  to  work  the 
oppression  of  the  people  for  the  benefit  of  a  class, 
it  is  imperialism,  disguise  it  as  you  may. 

And  now  I  ask,  Does  the  Government,  as  ad 
ministered  by  the  Republican  party,  judged  by  its 
actions  in  the  past  and  its  declared  purposes  for  the 
future,  fairly  fall  within  this  definition  of  imperialism? 

Neither  my  strength  nor  your  patience  would 
permit  my  dwelling  upon  all  the  indicia  by  which 
this  gangrene  of  imperialism  is  manifested  in  the 

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AT   SANTA    CRUZ 

Republican  party  to-day.  I  must  of  necessity 
confine  myself  for  the  present  to  one  only  of  the 
most  palpable,  decisive,  and  fatal.  I  allude,  of 
course,  to  the  attitude  which  that  party  has  assumed, 
and  which  it  declares  it  is  its  purpose  to  continue 
to  assume,  toward  the  territory  affected  by  our  late 
treaty  with  Spain. 

Let  us  at  the  outset  settle  one  question:  Does 
the  Republican  party  intend  to  retain  the  Philip 
pines  as  a  colony  outside  the  pale  of  the  Constitu 
tion,  without  the  rights  of  a  Territory  or  the  hope 
of  future  statehood,  to  be  governed  at  will  by  the 
President  or  the  Congress  ? 

Upon  this  there  is  no  room  for  doubt.  In  his 
last  annual  message,  discussing  this  question,  Presi 
dent  McKinley  said: — 

"  The  islands  lie  under  the  shelter  of  our  flag. 
They  are  ours  by  every  title  of  law  and  equity." 

The  attitude  of  the  Republican  party  toward 
these  islands  is  very  frankly  avowed,  and  boldly  set 
forth  in  an  article  published  in  the  September  num 
ber  of  the  North  American  Review,  in  which  it  is 
said : — 

"  The  statesmanship  of  our  land  might  well  de 
velop  its  ripest  fruits  in  the  solution  of  our  colonial 
problems.  We  must  remember  the  temptations 
which  may  from  time  to  time  lure  American  states 
men,  in  search  of  votes  in  the  United  States  Senate, 
to  advocating  the  creation  of  alien  states.  A  per 
petual  constitutional  barrier  must  be  erected  against 

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SPEECH 

the  statehood  of  all  non-contiguous  possessions.  We 
must  constitute  an  American  colonial  system/' 

It  may,  then,  be  considered  thoroughly  settled — 
indeed,  no  one  denies  it  to-day — that  it  is  the  pur 
pose  of  the  Republican  party  to  retain  the  Philip 
pine  Islands  subject  to  the  perpetual  dominion  of 
the  United  States,  to  be  governed  as  a  colony  at 
the  will  of  the  President  or  the  Congress. 

The  same,  of  course,  is  confessedly  true  of  Porto 
Rico,  since,  by  imposing  a  tariff  upon  both  its 
exports  and  imports,  a  Republican  Congress  and  a 
Republican  President  deal  with  it  as  a  subject  pos 
session  outside  the  Constitution,  and  entitled  to 
no  rights  of  a  Territory  of  the  United  States. 

And,  now,  let  me  address  a  question  to  the 
Republican  party:  What  are  your  intentions 
toward  Cuba?  You  have  pledged  the  honor  of 
the  American  people  to  give  that  much-vexed 
island  its  independence.  Do  you  intend  to  redeem 
that  pledge?  I  never  have  believed  that  you  did, 
and  do  not  now.  I  believe  that  when  you  declared 
war  against  Spain  your  pretense  of  outraged 
humanity  and  sympathy  for  a  people  striving  for 
independence  was  mere  cant.  I  believe  you  cared 
as  little  then  for  the  sufferings  of  the  reconcentrados 
under  Weyler  as  you  do  to-day  for  the  fate  of  the 
starving  millions  of  India.  I  believe  that  you 
looked  with  as  much  contemptuous  derision  upon 
the  warfare  of  Garcia' s  bands  of  insurgents  to 
achieve  their  independence  as  you  have  since 

226 


AT   SANTA   CRUZ 

beheld  with  indifference  the  pathetic  struggle  of 
the  heroic  soldiers  of  Joubert  and  Oom  Paul  to 
retain  theirs.  I  believe  that  throughout  this  bad 
business  you  have  had  from  the  start  two  objects  in 
view, — the  first  to  gain  political  capital  by  declaring 
and  carrying  on  the  war,  and  the  second  to  obtain 
and  keep  possession  of  Cuba.  I  believe  that  all 
your  past  efforts  and  present  maneuverings  are 
directed  to  execute  there  a  scheme  of  annexation 
similiar  to  that  by  which  Texas  was  lost  to  Mexico 
and  the  Hawaiian  Islands  have  been  filched  from 
the  descendants  of  the  Kamehamehas.  I  believe 
that,  under  one  plea  or  another, — of  military  ne 
cessity,  or  of  alleged  incapacity  for  self-government, 
or  of  pretexted  incompetency  to  enjoy  the  blessings 
of  independence, — you  will,  if  permitted,  prolong 
your  stay  until  that  object  is  accomplished.  This 
has  been  my  belief  from  the  beginning.  It  is  my 
belief  now.  That  belief  is  based  upon  my  estimate 
of  the  present  Administration,  and  of  the  character, 
interests,  and  purposes  of  the  men  who  shape  its 
ends.  Do  I  wrong  them? 

In  the  Senate  of  the  United  States,  as  late  as  the 
23d  of  May  of  this  year,  Senator  Hale,  of  Maine, 
a  Republican  of  undisputed  prominence  and  long 
service,  answering  Senator  Spooner,  of  Wisconsin, 
one  of  the  acknowledged  supporters  of  President 
McKinley,  said : — 

"  Now,  let  me  say  to  the  Senator  I  think  there  are 
very  powerful  influences  in  this  country;  I  think  they 

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SPEECH 

are  largely  located  in  New  York  City;  I  think  they 
are  largely  speculative  and  connected  with  money- 
making  enterprises,  that  are  determined  that  we  shall 
never  give  up  Cuba.  I  think  there  is  a  dangerous 
cloud  in  the  sky;  I  think  the  time  will  never  come, 
unless  something  earnest  and  drastic  is  done  by  Con 
gress,  when  the  last  soldier  of  the  United  States  will 
be  withdrawn  from  Cuban  soil. 

"  I  discover  very  powerful  influences  —  commer 
cial,  mercantile,  money  influences,  and  political  influ 
ences —  that  are  opposed  to  our  ever  withdrawing 
from  Cuba." 

In  a  speech  lately  delivered  in  Chicago,  the  junior 
Senator  from  Indiana,  Albert  A.  Beveridge,  made 
the  following  significant  declaration  : — 

"I  am  speaking  for  myself  alone;  but  speaking 
thus,  I  say  that  separate  government  over  Cuba, 
uncontrolled  by  the  American  republic,  never  should 
have  been  promised.  The  resolution,  hastily  passed 
by  all  parties  in  Congress,  at  an  excited  hour,  was 
an  error.  I  speak  for  myself  alone;  but  speaking 
thus,  I  say  that  it  will  be  an  evil  day  for  Cuba  when 
the  Stars  and  Stripes  come  down  from  Moro  Castle." 

It  may,  therefore,  be  set  down  for  a  certainty  that, 
as  it  is  the  avowed  intention  of  the  Republican 
party  to  keep  the  Philippines  forever,  so  it  is  their 
but  half-disguised  purpose  to  impose  the  same  fate 
upon  Cuba. 

And  now  the  question  may  fairly  be  asked  :  What 
is  there  in  all  this  that  indicates  an  abandonment  of 

228 


AT    SANTA    CRUZ 

the  principles  and  policy  of  the  Fathers  ?  What 
evidence  of  imperialism  is  involved  in  the  retention 
of  these  former  Spanish  possessions  as  colonies  of 
the  United  States  ?  How  would  that  be  an  act 
of  government  for  the  benefit  of  a  class  to  the  detri 
ment  of  the  people  ?  To  that  question  I  shall 
endeavor  to  give  a  categorical,  though  the  limita 
tions  of  the  hour  do  not  allow  a  complete,  answer. 

Before  doing  so,  however,  it  may  be  well  to  dis 
pose  of  one  argument  by  which  a  certain  class  of 
Republican  orators  fancy  they  silence  all  further 
discussion.  They  appeal  to  the  deep-seated  rever 
ence  for  the  flag.  They  argue  —  and,  of  course, 
truly — that  to  maintain  the  honor  of  our  national 
emblem  is  a  matter  which  concerns  the  whole  peo 
ple.  They  then  declare  with  clamorous  fervor  that 
wherever  that  flag  has  been  raised  by  the  valor  and 
blood  of  our  sons,  there  it  must  remain  forever. 
The  latest  utterance  upon  this  subject  was  that  of 
an  orator  in  San  Francisco,  who,  some  nights  ago, 
said : — 

"  McKinley  enlarged  this  nation  and  maintained 
its  flag  in  distant  lands,  where  fate  and  valor  planted 
it,  and  boldly  and  confidently  asks,  '  Who  will  haul 
it  down  ?'  ' 

This  sounds  well.  And  yet  it  takes  no  great 
reflection  to  realize  that  it  is  a  mere  trick  of  speech 
— a  transparent  jugglery  of  words.  If  it  is  meant 
that  wherever  the  victorious  arms  of  American 
soldiers  have  planted  their  country's  flag,  there  they 

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SPEECH 

will  defend  it  against  hostile  assault,  and  that  every 
citizen  is  concerned  in  having  it  so  defended,  the 
sentiment  is  legitimate  and  proper.  But,  in  that 
sense,  the  sentiment  itself  finds  no  room  for  appli 
cation.  What  these  perfervid  orators  mean  to  be 
understood  to  say  is,  that  wherever,  in  time  of  war, 
the  flag  has  been  unfurled,  it  involves  national  dis 
honor  for  the  people,  in  time  of  peace,  voluntarily 
to  haul  it  down.  In  this  sense  the  sentiment  is 
obviously  false  and  childish.  It  finds  a  most  fitting 
rebuke  in  the  speech  of  the  venerable  Senator  from 
Massachusetts  already  quoted  from,  where  he  says  : — 

"  Is  there  any  man  so  bold  as  to  utter  in  serious 
ness  the  assertion  that  where  the  American  flag  has 
once  been  raised  it  shall  never  be  hauled  down  ?  I 
have  heard  it  said  that  to  haul  down  or  to  propose 
to  haul  down  this  national  emblem  where  it  has  once 
floated  is  poltroonery.  If  every  territory  over  which 
the  flag  of  a  country  has  once  floated  must  be  held, 
and  never  shall  be  yielded  again  to  the  nation  to 
wrhich  it  belonged,  every  war  between  great  and 
powerful  nations  must  be  a  war  of  extermination  or 
a  war  of  dishonor  alike  to  the  victor  and  to  the  van 
quished.  This  talk  that  the  American  flag  is  never 
to  be  removed  where  it  has  once  floated  is  the  silliest 
and  wildest  rhetorical  flourish  ever  uttered  in  the 
ears  of  an  excited  populace.  No  baby  ever  said 
anything  to  another  baby  more  foolish." 

The  sentiment  is  proven  false  by  our  history. 
Two  years  and  a  half  ago,  being  in  the  capital  of 
our  sister  republic  across  the  Rio  Grande,  I  stood 

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AT   SANTA    CRUZ 

on  a  spot  where,  on  my  right  hand,  the  gray  walls 
and  red  roof  of  Molino  del  Rey,  still  bearing  the 
dents  made  by  the  shells  of  Worth's  battery,  were 
outlined  against  the  glowing  sky  of  the  tropical 
sunset,  while  on  my  left,  from  amid  a  grove  of  trees 
whose  hoary  heads  had  looked  down  upon  the  sol 
diers  of  Cortez  and  witnessed  the  heathen  rites  of 
Aztec  priests  in  the  days  of  Montezuma,  rose  the 
rocky  and  precipitous  heights  of  Chapultepec. 
Memory  brought  me  back  to  that  September 
morning,  fifty  years  before,  when,  at  the  head  of  a 
storming  party,  the  intrepid  Howard  had  scaled  the 
parapet  and  had  planted  the  victorious  standard  of 
his  country  upon  the  walls  of  the  ancient  Spanish 
vice-regal  castle.  But  that  flag  was  there  no  more. 
In  its  place,  streaming  in  the  deepening  twilight, 
was  the  emblem  of  another  republic — a  republic 
which,  though  conquered  by  us,  had  yet  learned  to 
copy  our  Constitution,  to  pattern  its  government 
upon  ours,  and  to  respect  and  venerate  our  institu 
tions.  Did  our  national  honor  suffer  any  impair 
ment,  or  were  the  achievements  of  our  troops 
tarnished,  because,  in  accordance  with  the  treaty  of 
Guadalupe  Hidalgo,  we  had  afterward  hauled  down 
our  flag  and  given  back  to  Mexico  the  territory 
which  Scott's  gallant  soldiers  had  conquered  and 
occupied  ?  Did  it  involve  dishonor  voluntarily  to 
surrender  in  peace  what  in  war  we  had  won  and 
defended  against  every  attack  ? 

Let  us  take  a  more  modern  illustration.     In  the 
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SPEECH 

late  war  with  Spain,  was  not  our  flag  raised  upon 
other  soil — and  raised  by  the  valor  of  our  soldiers  ? 
The  world  beheld  with  wonder  and  admiration  the 
deeds  of  that  unmatchable  band  of  warriors — each 
man  hero,  each  in  himself  at  once  soldier  and  com 
mander — who,  under  the  scorching  rays  of  a  torrid 
sun,  through  the  growth  of  a  tropical  jungle,  and 
amid  the  hail  of  Spanish  musketry,  climbed  the 
sides,  and  planted  their  banner  upon  the  heights,  of 
El  Caney.  If  ever  flag  was  raised  by  the  blood 
and  valor  of  our  sons,  that  surely  was.  If  ever  dis 
honor  comes  to  that  flag,  it  will  come  on  that  day 
when,  in  violation  of  the  plighted  faith  of  the 
American  people,  we  shall  refuse  to  haul  it  down. 

There  are  other  high-sounding  platitudes  which 
form  the  common  verbiage  of  a  certain  class  of 
Republicans.  Among  these  may  be  numbered  the 
talk  about  the  finger  of  Providence,  and  about  our 
manifest  destiny,  and  about  the  sacred  trust  confided 
to  us,  and  about  our  duty  to  humanity,  and  about 
the  spreading  of  the  Gospel,  and  the  like.  I  will 
pass  by  this  sort  of  talk  in  silence.  It  does  not 
call  for  serious  consideration. 

Brushing  aside  all  these  flourishes  of  a  meretri 
cious  rhetoric,  let  us  approach  the  question  at  issue: 
Is  the  retention  of  the  Philippines  an  imperialistic 
measure  ?  Does  it  involve  an  abandonment  of  the 
fundamental  principles  upon  which  our  Govern 
ment  is  founded,  and  the  subversion  of  the  essen 
tial  ideas  of  policy  according  to  which  it  has  been 

232 


AT   SANTA    CRUZ 

reared  aloft  ?  Does  it  entail  the  surrender  of  the 
great  truth  that  all  men  are  created  equal,  and  the 
violation  of  the  principle  that  our  true  prosperity 
must  ever  be  built  upon  a  basis  of  exalted  justice  ? 

The  first  sacrifice  involved  in  the  retention  of  the 
Philippines  will  be  our  national  honor.  That  reten 
tion  will  constitute  the  first  instance  of  the  violation 
of  the  plighted  faith  of  this  republic.  It  will  be 
the  first  blot  upon  our  escutcheon. 

Let  me  recall  the  circumstances  under  which  we 
acquired  possession  of  those  islands  —  lest  we  forget. 
Nearly  two  and  a  half  years  ago,  we  declared  war 
against  Spain.  The  once  glorious  empire  of  Charles 
V.  had  in  time  become  so  decayed  that  nothing  but 
the  loftiest  and  purest  motives  could  have  warranted 
a  generous  nation  in  challenging  to  combat  so  weak 
an  adversary.  We  proclaimed  to  the  world,  there 
fore,  that  we  were  actuated  by  no  other  motive  than 
disinterested  humanity  and  unselfish  sympathy  for 
a  neighboring  people  struggling  for  independence ; 
that  nothing  was  further  from  our  thought  than  the 
forcible  acquisition  of  the  territory  of  our  foe ;  and 
that  we  would  look  upon  such  acquisition  as  crimi 
nal.  Our  utterances  were  explicit.  The  Congress 
declared  that  "  the  people  of  the  island  of  Cuba 
are,  and  of  right  ought  to  be,  free  and  independent"; 
it  spurned  all  imputation  of  a  "  disposition  or  inten 
tion  to  exercise  sovereignty,  jurisdiction,  or  control 
over  said  island,  except  for  the  pacification  thereof"; 
and  asserted  "  its  determination,  when  that  was 

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SPEECH 

accomplished,  to  leave  the  government  of  the  island 
to  its  people/'  At  the  same  time,  our  Chief  Magis 
trate,  in  words  now  memorable,  announced  that  the 
forcible  annexation  of  Spanish  territory  would,  in 
our  code  of  morality,  be  a  criminal  aggression  not 
to  be  thought  of. 

"  These,"  says  President  Jordan,  "  were  noble 
words,  and  a  noble  nation  must  live  up  to  them. 
The  plea  that  they  were  intended  for  Cuba  only, 
and  do  not  pledge  us  to  a  like  action  elsewhere,  is 
too  cowardly  to  permit  of  discussion/' 

If,  then,  after  these  explicit  and  solemn  decla 
rations,  we  forcibly  or  fraudulently  retain  these 
Spanish  possessions,  or  either  of  them,  we  stand, 
by  the  judgment  of  our  own  Chief  Magistrate, 
convicted  of  perfidy. 

Is  this  the  conduct  that  befits  our  republic?  If 
it  is,  then  was  Washington  wrong  when  he  said  in 
his  Farewell  Address  that  the  maxim  that  honesty 
is  the  best  policy  is  no  less  applicable  to  public 
than  to  private  affairs ;  then  was  the  solemn  warn 
ing  of  his  first  inaugural,  "  that  the  propitious 
smiles  of  heaven  can  never  be  expected  on  a  nation 
that  disregards  the  eternal  rules  of  order  and  right 
which  Heaven  itself  has  ordained,"  an  empty  sound. 
No,  let  this  policy  seek  its  justification  among  the 
tortuous  maxims  of  kingcraft  inculcated  by  a  Ma- 
chiavelli  or  a  Talleyrand, —  it  can  find  none  in  those 
of  a  republic. 

The  next  price  that  we  must  pay  for  the  reten- 

234 


AT   SANTA    CRUZ 

tion  of  the  Philippines  will  be  the  sacrifice  of  the 
principles  of  our  Government. 

That  the  Constitution  bars  our  way  to  the  acqui 
sition  of  colonial  possessions  and  to  the  government 
of  human  beings  as  subjects,  is  a  proposition  so 
clearly  established  by  the  provisions  of  that  instru 
ment  and  the  history  of  the  conditions  under  which 
it  saw  the  light  as  to  admit  of  no  debate.  The 
framers  of  the  Constitution  had  themselves  been 
subjects  of  Great  Britain.  They  had  tasted  of  the 
bitterness  of  colonial  government.  For  years  they 
had  suffered  from  the  tyranny  which  treated  them 
as  mere  chattels,  governed  not  with  a  view  to  their 
own  welfare,  but  for  the  aggrandizement  of  the 
mother  country.  In  eloquent  and  passionate  ap 
peals  they  had  repeatedly  set  forth  their  grievances 
and  remonstrated  against  this  oppression.  Denied 
redress,  they  had  at  length  resolved  upon  the 
dangerous  and  doubtful  experiment  of  war.  They 
had  just  emerged  from  the  struggle  which  emanci 
pated  them  from  their  colonial  position  and  gave 
them  independence,  when  they  sat  down  to  devise  a 
scheme  of  government  best  suited  to  their  con 
dition.  That  in  establishing  the  fundamental  prin 
ciples  of  that  government  it  was  their  purpose  to 
provide  that  their  country  should  itself  become  the 
owner  of  colonies,  and  should  impose  upon  others 
that  tyranny  to  be  relieved  from  which  they  had 
themselves  paid  such  fearful  cost  of  treasure,  of 
suffering,  and  of  blood,  nobody  has  yet  had  the 

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SPEECH 

boldness  to  assert.  They  contemplated,  no  doubt, 
that  the  country  would  in  the  course  of  time  ex 
pand.  They  knew  that  its  territorial  extent  would 
increase  and  its  population  be  multiplied.  But  the 
only  permanent  territorial  additions  they  had  in 
view  were  to  come  through  the  admission  of 
States,  not  colonies;  the  only  increase  of  popula 
tion  in  the  shape  of  citizens,  not  subjects. 

This  whole  matter  was  long  ago  disposed  of  by 
the  Supreme  Court  of  the  United  States,  when  it 
said : — 

"There  is  certainly  no  power  given  by  the  Constitu 
tion  of  the  Federal  Government  to  establish  or  main 
tain  colonies  bordering  on  the  United  States  or  at  a 
distance,  to  be  ruled  or  governed  at  its  own  pleasure; 
nor  to  enlarge  its  territorial  limits  in  any  way,  except 
by  the  admission  of  new  States.  No  power  is  given 
to  acquire  a  territory  to  be  held  and  governed  per 
manently  in  that  character.  It  is  acquired  to  become 
a  State,  and  not  to  be  held  as  a  colony  and  governed 
by  Congress  with  absolute  authority.  A  power, 
therefore,  in  the  General  Government  to  obtain  and 
hold  colonies  and  dependent  territories  over  which 
they  might  legislate  without  restriction,  would  be 
inconsistent  with  its  own  existence  in  its  present 
form." 

The  price  to  be  paid,  therefore,  for  the  acquisition 
of  the  colonies  is  the  Constitution  itself.  That 
price  the  imperialists  are  willing  to  pay.  As  the 
Constitution  stands  in  their  way,  they  are  ready  to 

236 


AT   SANTA   CRUZ 

get  rid  of  the  Constitution.  This  disposition  is 
best  manifested  in  the  language  of  one  of  them, 
who,  some  time  ago,  said: — 

"  The  Constitution  or  national  policy  adopted  by 
thirteen  half-consolidated,  weak,  rescued  colonies, 
glad  to  be  able  to  call  their  lives  their  own,  cannot 
be  expected  to  hamper  the  greatest  nation  in  the 
world." 

The  Declaration  of  Independence  itself — which 
has  been  very  aptly  called  the  spirit,  while  the  Con 
stitution  is  the  letter,  of  our  Government  —  has 
been  characterized  in  this  same  quarter  as  "  but  a 
bit  of  sublimated  demagogism."  We  may  next 
expect  to  hear  these  gentry  declare  that  the  Ten 
Commandments  are  but  a  piece  of  hypocritical  cant. 

The  next  price  that  we  must  pay  for  the  retention 
of  the  Philippines  will  be  the  danger  and  the  cost 
of  militarism. 

It  is  obvious  that  the  retention  of  these  islands 
will '  involve  the  necessity  of  maintaining  a  vast 
army  and  navy.  To  police  them  we  must  do  what 
England  has  always  been  compelled  to  do  in  India 
—  keep  there  a  large  body  of  troops.  To  defend 
them  against  aggressions,  which  the  jealousy  or 
wars  of  foreign  nations  may  at  any  time  force 
upon  us,  we  must  have  at  our  command  an  adequate 
fleet.  Being  resolved — to  use  the  phrase  of  the 
day — to  become  a  world  power  and  to  adopt  the 
gait  of  other  powers,  our  pride  will  prompt  us,  and 
the  exigencies  of  our  position  may  compel  us,  to 

237 


SPEECH 

take  the  lead.  We  have  already  made  a  very 
significant  step  in  that  direction.  After  the  war 
with  Spain  had  been  brought  to  an  end,  Congress, 
in  conformity  with  the  request  contained  in  the 
President's  message  of  December,  1898,  authorized 
the  increase  of  our  army  from  twenty-five  thousand 
to  one  hundred  thousand  men.  We  will  never 
rest  until  we  have  an  army  and  navy  larger  and 
more  powerful  than  those  of  any  other  nation  of 
the  globe. 

But  the  expense  of  keeping  up  this  armament  is 
appalling.  Do  you  know  what  the  cost  of  Con 
tinental  armies  is?  It  is,  in  round  numbers,  one 
fourth  of  the  whole  revenue  of  the  nations  of  the 
Old  World.  How  is  it  with  us?  We  have  only 
begun.  Our  army  and  navy  are  yet  comparatively 
small.  But  we  have  already  shown  what  we  can 
do  for  the  present,  and  given  some  idea  of  what  we 
may  accomplish  in  the  future.  For  the  fiscal  years 
1897  and  1898  —  before  the  war  with  Spain — our 
average  yearly  appropriation  was,  in  round  num 
bers,  four  hundred  and  seventy-five  million  dollars. 
For  the  three  years  following —  1899,  1900,  1901 — 
our  average  yearly  appropriation,  actual  and  esti 
mated,  has  been  and  is,  in  round  numbers,  seven 
hundred  'and  seventy-five  million  dollars.  The 
excess  for  each  year  since  the  war  is,  in  round  num 
bers,  three  hundred  million  dollars.  The  luxury  of 
our  army  and  navy,  then,  has  already  cost  us,  in 
round  numbers,  the  enormous  sum  of  six  hundred 

238 


AT   SANTA    CRUZ 

million  dollars.  There  is  every  prospect  that,  as 
time  rolls  on  and  our  armaments  increase,  these 
figures,  instead  of  becoming  smaller,  will  become 
larger. 

Take  the  expenditures  for  the  army  alone,  with 
out  regard  to  the  navy.  From  dispatches  dated  at 
Washington  the  8th  of  last  month,  and  published 
in  the  San  Francisco  papers  on  the  following  day,  it 
is  made  manifest  that,  although  the  Administration 
is  strenuous  in  its  insistence  that  the  war  in  the 
Philippines  is  over  and  that  peace  has  been  restored, 
there  is  no  intention  of  diminishing  our  present 
standing  army.  On  the  contrary,  the  Administration 
is  determined  to  maintain  that  army  permanently, 
upon  its  present  footing  at  least.  These  dispatches 
say: — 

"  Secretary  Root  has  planned  to  ask  Congress  to 
increase  the  army  by  seventy-five  thousand  men,  so 
as  to  place  the  regular  establishment  on  an  enlisted 
footing  of  one  hundred  thousand  men  permanently. 
Secretary  Root,  it  is  said,  deems  the  larger  army 
necessary  to  a  maintenance  of  American  rule  in  the 
new  possessions.  Moreover,  if  the  United  States  is 
to  mix  in  foreign  affairs,  a  larger  army  is  an  absolute 
necessity." 

What  is  the  estimated  cost  of  the  army?  In  the 
same  dispatches  it  is  said: — 

"  Chiefs  of  bureaus  of  the  War  Department  are 
estimating  for  expenses  on  the  basis  of  an  army  of 
one  hundred  thousand  men." 

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SPEECH 

After  giving  in  detail  the  cost  ot  the  various 
departments  of  this  army,  the  dispatches  conclude: — 

'*  The  War  Department  estimates  figure  up  nearly 
two  hundred  million  dollars." 

These  estimates  do  not,  of  course,  include  the 
expenses  of  the  navy.  They  are  a  verification  of 
a  prediction  made  by  Senator  Hoar  in  his  speech 
already  quoted  from,  when  he  said: — 

"  Assuming  that  the  War  Department  has  asked 
for  a  sum  sufficient  to  assume  the  occupation  of  the 
islands  and  a  proper  establishment  for  police  pur 
poses,  it  will  be  seen  that  there  are  other  larger  and 
uncertain  items  of  cost  uprovided  for,  and  the  annual 
appropriation  will  in  future  be  nearer  two  hundred 
million  dollars  in  excess  of  those  of  1898  than 
$155,712,751,  an  annual  increased  expenditure  of 
two  hundred  million  dollars." 

The  next  price  that  we  must  pay  for  the  reten 
tion  of  the  Philippines  will  be  the  race  problem 
presented  by  the  introduction  into  our  body  politic 
often  or  twelve  millions  of  men,  strangers  in  blood, 
color,  language,  moral  habits,  and  modes  of  life  — 
fierce  and  warlike  men  who,  as  long  as  they  exist, 
will  look  upon  us  with  the  aversion,  the  hatred, 
and  the  desire  for  revenge  with  which  an  alien  race 
ever  looks  upon  its  conqueror.  Whether  they 
come  to  us  as  citizens  or  as  subjects,  the  question 
will  always  arise,  What  shall  we  do  with  them  ? 
The  thought  of  amalgamation  is  as  revolting  to  our 
nature  as  it  would  be  debasing  to  our  race.  Of  all 

240 


AT   SANTA    CRUZ 

the  utterances  of  the  President  upon  this  bad  busi 
ness,  the  most  unbearable  is  that  wherein  he  told 
these  people  that  "  The  mission  of  this  nation 
is  one  of  benevolent  assimilation."  Assimilation  ! 
Assimilation  with  the  native  of  the  Malayan  archi 
pelago  !  Assimilation  with  the  heathen  slave-driver 
and  the  Mohammedan  pirate  ! 

Upon  this  subject  it  is  to  Southern  men  espe 
cially  that  I  wish  to  address  my  remarks.  To  them 
I  speak,  for  they  best  know.  If,  then,  there  be 
within  the  sound  of  my  voice  a  Southern  man 
who  has  already  listened  to  the  siren  strains  of 
imperialism,  who  has  allowed  his  imagination  to  be 
dazzled  by  visions  of  wealth  and  aggrandizement, 
whose  natural  fealty  has  been  disturbed  by  the 
delusions  of  commercialism,  to  him  I  appeal.  If  he 
contemplates  the  bringing  among  us  of  the  black, 
brown,  or  copper-colored  inhabitants  of  Cuba,  of 
Porto  Rico,  and  of  the  Philippines,  under  a  process 
of  "  benevolent  assimilation,"  to  him  I  say :  Pause 
before  you  take  this  fatal  step.  Are  you  ignorant 
of  the  condition  of  that  land  in  which  you  first 
opened  your  eyes,  and  upon  which  it  was  the  pride 
of  your  forefathers  to  center  their  affections  ?  Do 
not  you  know  what  the  presence  of  an  inferior  race 
has  done  to  your  people  ?  Do  not  you  know  how 
it  has  hindered  their  prosperity  and  crushed  their 
hope  ?  Have  you  forgotten  that  radiant  child  of 
genius  who  lit  up  for  a  moment  the  splendor  of 
the  Southern  sky,  and  then,  meteor-like,  sank  into 

241 


SPEECH 

the  premature  gloom  of  darkness  and  of  death, — the 
ever-to-be-lamented  Henry  W.  Grady  of  Georgia? 
Have  you  forgotten  the  eloquence  and  the  pathos 
with  which  he  pleaded  the  cause  of  his  people  to 
the  men  of  New  England?  Have  you  forgotten 
how  he  told  them  of  their  domain,  where  was  cen 
tered  all  that  could  please  or  prosper  mankind, 
blighted  by  the  presence  of  an  alien  and  inassimil- 
able  race  ?  Have  you  forgotten  how  he  told  them 
that  nothing  but  this  race  problem  closed  to  the 
world  the  fairest  half  of  the  republic,  hardened  the 
hearts  of  brothers  for  thirty  years  estranged,  and 
stood  between  them  and  such  love  as  had  bound 
Georgia  and  Massachusetts  at  Valley  Forge  and 
Yorktown?  Have  you  forgotten  how  he  told  them 
that  the  resolute,  clear-headed,  broad-minded  men 
of  the  South,  men  who  had  plucked  courage  from 
despair  amid  the  ashes  of  their  war-wasted  homes, 
wore  this  problem  in  their  hearts  and  their  brains 
by  day  and  by  night,  and  shuddered  as  they  gazed 
into  its  awful  depth  with  its  lurid  abysses  and  its 
crimson  stains  ?  No,  you  cannot  have  forgotten  the 
strains  of  that  eloquence,  the  sublimest  and  most 
touching  heard  by  mortal  ears  since  the  days  when 
the  voice  of  Patrick  Henry  awoke  to  resistance 
against  tyranny  the  slumbering  energies  of  Virginia. 
And  will  you  now  intensify  the  darkness  of  this 
melancholy  picture  ?  Will  you  add  to  the  distrac 
tion  and  sorrow  of  that  land  which  you  once  loved 
to  call  mother  ?  You  may.  But  did  I  stand  where 

242 


AT   SANTA    CRUZ 

you  stand,  I  would  rather  have  my  arm  fall  palsied 
by  my  side  than  have  her  turn  her  reproachful  eyes 
on  me  and  exclaim,  "  Thou,  too,  my  son  ! " 

The  final  price  that  we  must  pay  is  the  price  of 
blood. 

We  must  walk  in  the  footsteps  of  England.  We 
must  follow  the  example  set  by  her  in  the  Trans 
vaal.  Like  her,  we  must  enforce  commercialism 
at  the  point  of  the  bayonet.  Like  her,  we  must, 
upon  a  frivolous  pretext,  invade  a  country  whose 
people  have  never  wronged  us,  and  over  their 
ruined  homes  and  fields,  crimsoned  with  the  blood 
of  their  sons  and  ours,  hoist  the  flag  of  trade.  We 
have  already  shown  ourselves  zealous  imitators  of 
her  policy.  Already  have  we  tasted  of  its  bitter 
fruit.  Up  to  the  present  time,  we  have  sent  to  the 
Philippines  over  eighty-one  thousand  soldiers.  Of 
these  nearly  six  thousand  have  been  killed,  and 
over  four  thousand  are  now  in  hospitals.  That  the 
conflict  is  not  abated  is  proved  by  continued  reports 
of  battles.  And  that  the  hour  of  withdrawing,  or 
even  diminishing  the  number,  of  our  troops  has  not 
arrived  is  evidenced  by  the  declaration  lately  made 
that  it  was  not  wise  to  weaken  ourselves  there  by 
sending  soldiers  to  China.  Our  blood  and  the 
blood  of  a  people  guilty  of  no  other  crime  than 
that  of  aspiring  to  independence  must  continue  to 
be  shed  in  order  that  the  Moloch  of  trade  may  be 
appeased.  And  yet  we  talk  of  our  humanity,  and 
boast  of  our  civilization  ! 

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SPEECH 

This,  then,  is  the  price  that  we  must  pay  for  the 
retention  of  these  islands:  The  loss  of  national 
honor;  the  violation  of  our  Constitution;  the  bur 
den  and  the  dangers  of  a  standing  army;  the  intro 
duction  of  an  alien  and  inassimilable  race;  the  blood 
of  our  people. 

What  is  offered  in  return?  The  cold,  hard, 
practical  aspect  of  the  subject,  viewed  from  the  true 
Republican  standpoint,  has  been  frankly  and  cor 
rectly  outlined  by  Mr.  Denby,  a  member  of  the 
first  commission  sent  out  by  President  McKinley. 
Upon  his  return,  he  said : — 

"  Will  the  possession  of  these  islands  —  the  Philip 
pines — benefit  us  as  a  nation  ?  If  it  will  not,  set  them 
free  to-morrow,  and  let  their  people,  if  they  wish,  cut 
each  other's  throats  or  play  what  pranks  they  please. 
To  this  complexion  we  must  come  at  last,  that,  unless 
it  is  beneficial  for  us  to  hold  these  islands,  we  should 
turn  them  loose." 

The  question,  then,  viewed  from  this  standpoint, 
is  whether  it  will  benefit  us  as  a  nation  to  retain 
these  islands.  The  source  from  which  national 
benefits  are  to  flow  is,  according  to  all  Republican 
authority,  the  expansion  of  trade.  "  We  make  no 
hypocritical  pretenses  of  being  interested  in  the 
Philippines  solely  on  account  of  others.  We  believe 
in  trade  expansion.  We  mean  to  stimulate  the  ex 
pansion  of  our  trade,  and  open  new  markets."  Thus 
spoke  the  temporary  chairman  of  the  late  Republi 
can  Convention  in  his  address  at  Philadelphia. 

244 


AT   SANTA    CRUZ 

Nobody  questions,  of  course,  that  the  nation  at 
large  is  benefited  by  a  legitimate  and  proper  expan 
sion  of  trade.  The  Republican  party  starts  out, 
however,  by  assuming  as  a  postulate  that  colonial 
possessions  are  necessary — or,  at  least,  conducive — 
to  such  expansion.  But  this  assumption  is  wholly 
unwarranted.  The  possession  of  colonies  is  not 
essential  to  expansion  of  trade.  Such  expansion  is 
determined  by  entirely  different  causes.  It  depends 
upon  quality  of  product,  cheapness  of  price,  and 
commercial  efficiency.  In  the  race  for  commercial 
supremacy  between  us  and  England,  the  older 
nation  started  out,  more  than  a  century  ago,  greatly 
in  the  lead  of  the  newly  established  republic  upon 
the  Atlantic.  Great  Britain  was  at  that  time  easily 
the  foremost  commercial  nation  of  the  globe.  If 
colonial  possessions  are  an  essential  advantage  in  a 
contest  for  trade,  she  has  always  possessed  it.  India, 
Australia,  New  Zealand,  Canada,  and  British  North 
America  were  then  already  hers.  By  additions  since 
in  Africa  and  Asia,  her  dependencies  to-day  throw 
those  of  all  other  nations  combined  in  the  shade. 
Her  colonies,  protectorates,  and  spheres  of  influence 
cover  now  nearly  one  third  of  the  inhabited  portion 
of  the  globe.  During  all  this  time,  the  United  States 
have  had  no  colonies.  If  colonial  possessions,  then, 
could  insure  commercial  supremacy,  England  ought 
easily  to  have  kept  the  lead  she  originally  held,  and 
in  this  race  of  a  century  to  have  distanced  her  rival. 
But  such  has  not  been  the  case.  The  nation  which 

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SPEECH 

started  out  without  colonies,  and  has  carried  on  her 
trade  without  them,  has,  nevertheless,  outstripped 
her  competitor.  To-day  England  resigns  the  scepter 
of  supremacy  into  the  hands  of  her  younger  rival. 
To-day  America  sits  enthroned  the  crowned  mis 
tress  of  the  commerce  of  the  world. 

But  were  this  otherwise,  the  question  would  still 
remain,  whether  trade,  extended  and  maintained  by 
the  methods  we  have  used,  and  must  needs  continue 
to  use,  in  the  Philippines,  will  be  a  benefit  to  the 
nation.  Even  if  we  should  look  at  the  subject  from 
a  merely  financial  standpoint,  this  would  depend 
upon  a  comparison  of  cost  and  results.  It  is  doubtful 
whether  any  pecuniary  profit  we  might  hope  to  reap 
from  the  trade  of  the  Philippines  would  offset  the 
enormous  expense  of  maintaining  it.  Says  President 
Jordan: — 

"Allowing  a  net  profit  of  ten  per  cent,  on  all 
transactions,  a  complete  monopoly  of  Philippine 
trade  would  leave  the  people  a  debt  of  seven  million 
dollars  for  every  three  million  dollars  our  trading 
companies  might  gain.  In  time,  perhaps,  the  out 
look  would  be  less  unequal.  Trade  might  increase, 
expenses  grow  less,  but  in  no  conceivable  event 
would  the  people  get  their  money  back." 

Some  benefits  will  undoubtedly  be  reaped.  But 
by  whom  ?  There  are  unquestionably  those  who 
will  profit  by  the  retention  of  these  islands  as  col 
onies  of  the  United  States,  to  be  governed — as  they 
are  now  governed — at  the  will  of  the  President, 

246 


AT   SANTA    CRUZ 

with  unlimited  power  of  appointing  such  govern 
mental  commissions,  courts,  and  administrative 
officers  as  he  may  see  fit,  and  of  granting  such 
franchises,  concessions,  and  privileges  as  he  may 
desire.  Trusts,  organized  here  to  exploit  the  agri 
cultural  and  mineral  resources  of  the  islands,  would, 
doubtless,  make  money.  Trading  corporations, 
carrying  on  their  operations  with  practically  servile 
labor,  and  importing  the  products  of  that  labor  here 
free  of  duty,  would,  doubtless,  make  money.  Ship 
ping  companies,  engaged  in  the  transportation  of 
troops,  would,  doubtless,  make  money.  The  ever- 
increasing  swarm  of  office-holders  would,  doubtless, 
make  money. 

All  this  may  be  readily  admitted.  But  all  these 
classes  combined  fall  far  short  of  constituting  the 
nation.  When  they  are  disposed  of,  the  question 
still  remains,  Will  the  possession  of  these  islands 
benefit  us  as  a  nation  ?  And  I  submit  it  to  your 
candid  judgment  whether,  upon  a  dispassionate  view 
of  the  subject,  that  question  must  not  be  answered 
in  the  negative. 

Consider  first  upon  whom  the  price  of  the  acquisi 
tion  and  retention  of  these  islands  will  fall ;  consider 
whose  the  sacrifices  to  be  made.  The  answer  is 
unavoidable:  Upon  that  great  mass  of  humanity — 
the  tillers  of  the  soil,  the  wage-earners,  the  men  of 
moderate  means — who  constitute  the  plain  people. 

For  the  protection  of  these  the  declaration  was 
made  that  all  men  are  created  equal,  and  that  the 

247 


SPEECH 

consent  of  the  governed  is  the  only  legitimate 
source  of  government.  And  it  is  upon  them  that 
the  fatal  consequences  of  the  subversion  of  those 
great  principles  must  most  grievously  fall. 

These  also  are  the  ones  who  have  a  most  abiding 
interest  in  preserving  the  Constitution  inviolate.  It 
was  Washington's  last  exhortation  to  his  country 
men  that  it  should  be  sacredly  maintained,  unques- 
tioningly  accepted  as  obligatory  upon  all,  and 
protected  from  every  innovation  upon  its  principles. 
It  has  been  the  one  object  to  which  the  American 
people  have  ever  clung  with  unswerving  devotion. 
Nor  is  this  a  matter  of  mere  sentiment.  The  Decla 
ration  of  Independence  and  the  Constitution  are  the 
charters  by  which  the  equality  of  all  men  is  vouch 
safed,  the  bulwarks  by  wrhich  they  are  protected 
against  the  exercise  of  arbitrary  or  despotic  govern 
ment.  To  abandon  them  is  to  give  up  everything 
that  distinguishes  our  republic  from  a  monarchy, 
everything  that  differentiates  an  American  citizen 
from  a  subject  of  the  Czar. 

Upon  the  shoulders  of  the  plain  people  must 
also  fall  the  enormous  burden  of  taxation  incident 
to  the  support  of  the  standing  army  needed  to 
maintain  our  possession  of  these  distant  colonies. 
Arrange  them  as  you  may,  it  is  upon  that  class  that 
all  taxes  ultimately  fall. 

In  an  interview  published  in  the  San  Francisco 
Examiner,  on  the  i6th  of  last  month,  Mr.  John  J. 
Valentine,  speaking  of  this  campaign,  truly  said: — 

248 


AT   SANTA   CRUZ 

4 '  It  is  a  campaign  that  has  many  strange  features, 
and  none  is  more  strange  than  the  desire  of  the 
working-people  to  pay  the  enormous  cost  of  the  war 
in  the  Philippines.  The  cost  of  that  war  must  fall 
on  them.  It  is  a  political  truism  that  taxes  always 
fall  —  sift  down  —  on  the  working-classes.  They  will 
never  benefit  a  nickel  by  the  acquisition  of  the 
islands,  but  they  must  pay  its  cost.  The  Spanish 
and  Philippine  wars  will  have  cost  the  American 
people  six  hundred  million  dollars  by  the  end  of  the 
present  fiscal  year,  next  June.  It  is  the  nature  and 
law  of  taxation  to  fall  heaviest  on  the  great  consum 
ing  classes." 

But  graver  consequences  than  those  which  arise 
from  mere  expenditure  of  money  must  inevitably 
attend  the  introduction  of  militarism  as  an  institu 
tion  in  our  midst.  All  history  proves  that  the 
advent  of  a  standing  army  is  a  menace  to  liberty. 
It  is  the  substitute  of  might  for  right.  It  is  the 
enthronement  of  arbitrary  will  in  the  seat  of  law.  It 
is  the  vampire  which  feeds  to-day  upon  the  life- 
blood  of  the  nations  of  Continental  Europe.  As 
has  been  truly  and  graphically  said,  if  we  adopt  it, 
"  The  American  child  hereafter  must  be  born  with 
a  mortgage  round  its  neck;  the  American  laborer 
hereafter  must  stagger  through  life  with  a  soldier  on 
his  back."  And  the  children  who  will  be  drafted 
to  fill  up  the  ranks  of  the  standing  army,  and  whose 
blood  must  be  shed  in  battle,  are  the  children  of  the 
plain  people. 

249 
Q 


SPEECH 

As  it  is  evident,  therefore,  that  all  the  burden 
incident  to  the  retention  of  the  Philippines  will  be 
cast  upon  the  shoulders  of  the  great  mass  of  the 
people,  it  may  now  be  asked,  How  will  they  profit 
by  that  retention  ?  How  will  the  laboring  and  the 
farming  classes,  which  constitute  the  great  bulk  of 
the  population,  be  benefited  ? 

The  climate  and  condition  of  the  islands  are  such 
as  to  exclude  from  them  all  white  persons  who  have 
to  earn  their  livelihood  by  toil.  Neither  the  jour 
neyman  nor  the  tiller  of  the  soil  can  find  a  home  in 
a  country  already  swarming  with  a  population 
denser  than  that  of  the  oldest  of  the  United  States. 
They  cannot  labor  under  the  scorching  rays  of  a 
tropical  sun.  They  cannot  compete  with  the 
swarming  millions  of  natives  who  work  for  a  daily 
wage  which  would  here  hardly  be  the  price  of  a 
pound  of  meat  or  a  loaf  of  bread.  They  cannot 
remain  in  lands  where  all  experience — that  of  Java 
and  the  Hawaiian  Islands,  for  instance — shows  that 
no  successful  enterprise  can  be  carried  on  except  by 
labor  avowedly  or  practically  servile. 

But  this  is  not  all.  Not  only  can  no  benefit 
accrue  to  this  class,  but  an  unavoidable  disadvantage 
must  ensue.  Who  shall  prevent  the  inhabitants  of 
these  islands  from  coming  here  to  compete  with 
labor  in  our  own  midst  ?  Will  we  go  the  length  of 
enacting  laws  preventing  free  movement  of  one  part 
of  our  population  from  one  place  of  our  territory 
to  another  ?  The  Chinese  coolie  may  not  enter 

250 


AT   SANTA    CRUZ 

here  to-day,  because  of  a  treaty  stipulation  with  his 
nation.  But  what  of  his  half-brother,  the  Malay 
of  the  archipelago  ?  How  will  you  exclude  him  ? 
If  an  inhabitant  of  the  Philippines  wishes  to  come 
here,  may  he  not  do  so?  Nay,  more, —  if  having 
come,  he  desires  to  enjoy  the  rights  of  a  citizen, 
who  will  prevent  him  ?  By  the  treaty  of  Paris,  the 
sovereignty  of  Spain  over  these  islands  was  extin 
guished.  Ours  took  its  place.  If  their  inhabitants, 
having  ceased  to  be  citizens  of  Spain,  are  not  citi 
zens  of  the  United  States,  of  what  country  are 
they  citizens  ?  If  their  allegiance  is  not  due  to  our 
Government,  to  what  Government  do  they  owe  it  ? 
If  this  is  not  their  country,  where  is  their  country? 
But  even  if  the  inhabitants  of  these  islands  were 
not  permitted  to  land  upon  our  shores,  the  labor  of 
the  United  States  cannot  avoid  being  brought  into 
competition  with  theirs.  The  products  of  that  labor 
will  necessarily  be  imported  here.  This  could  be 
prevented  only  by  a  discriminating  tariff,  similar  to 
that  now  imposed  upon  Porto  Rico.  But,  in  the 
first  place,  that  tariff  was  not  devised  for  the  benefit 
of  American  labor,  but  of  American  monopolies. 
It  was  imposed  at  the  dictation  of  the  sugar  and 
tobacco  trusts,  which,  as  they  did  not  then  own  or 
control  the  sugar  and  tobacco  plantations  of  the 
islands,  did  not  wish  to  permit  their  products  to 
enter  here  to  compete  with  theirs.  But  by  and  by, 
when  these  monopolies  shall  have  extended  the 
sphere  of  their  operations  to  these  new  fields  — 

251 


SPEECH 

when  they  shall  own  or  control  the  sugar  and  tobacco 
plantations — what  will  happen?  Just  what  has 
happened  in  the  Hawaiian  Islands.  The  tariff  will 
be  taken  off,  and  the  cheap  labor  of  those  countries 
will  invade  us  in  the  shape  of  their  cheaply-produced 
products.  Will  the  great  mass  of  the  people  —  the 
consumers  —  reap  a  benefit  from  this  in  the  shape 
of  cheaper  sugar  or  tobacco  ?  Not  at  all.  Having 
stifled  competition  and  secured  full  control,  the 
monopolies  will  continue  to  dictate  the  price,  just 
as  they  do  now. 

Sum  up,  therefore,  the  whole  question  of  the 
retention  of  the  Philippines  as  colonies  of  the 
United  States,  and  it  amounts  to  this  :  Those  isl 
ands  are  to  be  retained  at  the  expense  of  the  people 
for  the  benefit  of  a  class.  This  is  imperialism. 

And,  now,  I  close  as  I  began.  A  momentous, 
a  paramount  question  confronts  us  to-day.  Two 
potent  banners  are  flung  to  the  breeze.  Under  the 
folds  of  one  stands  arrayed  the  new  army  of  impe 
rialism.  Under  the  other  are  enlisted  those  who 
still  cling  to  the  principles  of  the  Declaration  of 
Independence ;  who  still  look  upon  the  Constitu 
tion  as  the  great  bulwark  of  their  liberties  ;  who 
still  revere  the  teachings  of  the  sages  of  old,  and 
would  have  their  country  shape  its  policy  in  accord 
ance  with  the  precepts  of  Washington  and  of  Jeffer 
son  ;  who  would  not  exchange  the  republic  in  which 
they  and  their  children  were  born  for  all  the  mon 
archies  and  empires  of  Europe  ;  who  look  with  pride 

252 


AT   SANTA   CRUZ 

upon  the  flag,  and  would  protect  it  from  the  stain 
of  perfidy  or  national  dishonor. 

Upon  which  banner  shall  victory  perch  ?  "  The 
federal  republic — the  imperial  republic,  which  shall 
it  be  ? "  Before  to-morrow's  sun  shall  have  sunk 
beneath  the  waves  of  yonder  ocean,  the  American 
people  will  have  answered  that  question  —  and 
answered  it  forever. 


253 


LITERARY 


THIS  address  was  delivered  on  Thursday,  December  29,  1892, 
before  the  State  Teachers'  Association  of  California,  at  their  annual 
meeting,  held  in  the  city  of  Fresno. 

It  was  repeated,  at  the  request  of  the  faculties,  at  the  State 
Normal  Schools  in  San  Jose  and  Chico. 


EDUCATION 

MR.  PRESIDENT,  MEMBERS  OF  THE  CALIFORNIA 
TEACHERS'  ASSOCIATION,  LADIES  AND  GENTLEMEN: 
Though  gratified  and  honored  by  the  invitation 
extended  to  me  to  address  your  Association  on  this 
occasion,  yet  when  brought  to  face  the  task,  I  can 
not  fail  to  recognize  the  difficulties  which  surround 
it.  To  speak  fittingly  upon  any  subject  to  an  assem 
blage  composed  of  persons  whose  whole  life  has 
been  devoted  to  intellectual  pursuits  were  no  easy 
task.  To  speak  upon  education — a  subject  to  the 
study  and  comprehension  of  which  their  energies 
have  been  daily  employed  for  years — is  still  more 
arduous.  And  yet,  perhaps,  some  good  may  result 
from  contemplating,  from  a  layman's  standpoint, 
some  features  of  a  topic  with  which  you  are  all, 
from  a  professional  standpoint,  familiar.  Light  is 
often  emitted  by  the  attrition  of  minds  of  opposite 
tendencies,  diversified  habits,  and  varied  pursuits. 
Truths  are  not  seldom  brought  out  and  made  to 
stand  in  relief  by  oral  discussion  which  solitary 
meditation  either  fails  to  reveal,  or  reveals  but 
dimly. 

257 


ADDRESS 

Your  Association  represents  a  power  which,  meas 
ured  by  its  influence  in  the  State  and  its  capacity 
for  good,  stands  foremost  among  the  great  agencies 
of  civilization.  Political  rulers,  magistrates,  legisla 
tors,  all  who  assume  the  government  of  states  or 
empires,  deal  in  the  main  with  man  when  his  mental 
and  moral  characteristics  are  already  fully  developed 
or  rigidly  set.  They  may  coerce,  restrain,  or 
destroy  the  individuals  subjected  to  their  control, 
but  their  power  of  altering  their  nature,  or  modify 
ing  the  sources  from  which  their  conduct  flows,  if  it 
exists  at  all,  is  restricted  within  narrow  bounds. 
You,  the  teachers  of  the  State,  deal  with  human 
nature  in  its  plastic  condition.  It  is  yours  to  mold  it 
to  your  will.  From  your  hands  it  issues,  bearing 
largely  the  shape  which  you  have  impressed  upon 
it,  and  which  it  will  retain  in  after  life.  You  are 
placed  at  the  fountainhead  of  society,  where  the 
slender  stream  may  be  easily  diverted  into  any 
channel  which  you  may  choose  to  trace.  Political 
rulers  stand  below,  where  the  broadened  waters  flow 
between  fixed  banks,  which  human  power  is  impo 
tent  to  change. 

I  deem  it,  therefore,  a  high  privilege  to  be  invited 
to  counsel  with  you  upon  your  mission.  And  if  any 
words  of  mine  shall  result  in  giving  you  any  assist 
ance,  however  slight,  in  the  discharge  of  your  task,  I 
shall  feel  that  my  efforts  have  not  been  wholly  vain. 

It  is  not  my  purpose,  of  course,  to  attempt  any 
thing  even  approaching  a  comprehensive  disquisition 

258 


ON    EDUCATION 

upon  the  subject  of  education.  My  aim  must 
simply  be  to  give  expression  to  a  few  ideas  con 
nected  with  the  subject  which,  in  the  course  of  life, 
have  occurred  to  me. 

It  is  a  very  common  error  to  confound  education 
with  learning.  The  phrase,  "  a  well-educated  man  " 
or  a  "  highly  educated  man  "  is  not  infrequently 
applied  to  one  who  has  gone  through  a  college  or 
university  course  with  success,  or  has  achieved  emi 
nence  in  some  special  branch  of  learning — perhaps, 
especially,  in  classical  attainments.  But  in  the  sense 
in  which  the  word  education  is  more  properly  used, 
a  man  may  be  a  very  learned,  and  at  the  same  time 
a  very  ill -educated  person.  To  read  understand 
ing^  the  ancient  classics,  to  be  versed  in  the  nice 
distinctions  between  the  various  Greek  dialects,  to 
write  Latin  prose  with  Ciceronian  elegance,  or  verse 
with  the  terseness  of  Horace  and  the  elegance  of 
Catullus,  is  not  necessarily  to  be  well  educated. 
The  same  is  true  of  scientific  attainments.  A  man 
is  not  necessarily  well  educated  because  he  com 
mands  the  whole  range  of  mathematics  from  algebra 
to  conic  sections  or  differential  calculus,  nor  because 
he  has  fathomed  the  depths  of  biology,  sociology, 
and  all  other  allied  sciences.  He  may  know  all 
these,  and  yet  be  very  poorly  educated.  He  may 
know  all  these,  and  yet  be  very  ill-fitted  for  the 
discharge  of  the  functions  and  duties  of  life. 

What,  then,  it  may  be  asked,  is  education  ?  As 
understood  by  the  teachers  of  to-day,  it  is,  I  venture 

259 


ADDRESS 

to  think,  a  proper  development  and  training  of  all 
the  faculties  of  man,  physical,  moral,  and  intellec 
tual.  A  perfect  education,  were  it  attainable,  would 
be  the  development  and  training  of  these  faculties 
to  the  highest  degree  of  which  they  are  capable,  so 
as  to  enable  man  to  live  the  most  ample  and  com 
plete  life  permissible  in  his  surroundings. 

Life  comes  to  us  unsought.  We  are  brought 
into  the  world  without  any  act  or  choice  of  ours. 
From  the  operation  of  causes  yet  beyond  our  ken, 
we  are  made  to  form  a  part  of  the  universe.  The 
discussion  of  the  question  much  agitated  of  late, 
whether  the  existence  conferred  upon  us  is  a  boon  or 
a  curse, — -whether  life  is  worth  living, —  seems  abso 
lutely  idle.  We  live  ;  and  if,  in  the  spirit  of  proper 
humility  or  candid  philosophy,  we  look  around  us 
upon  the  various  orders  of  created  beings,  we  will 
see  that  the  law  which  governs  us  governs  them  all 
—  the  law  of  life.  The  struggle  everywhere  is  to 
exist,  to  live,  and  to  continue,  either  individually  or 
by  reproduction,  to  perpetuate  life.  Man  forms 
no  exception  to  the  operation  of  this  universal  law. 
He  lives,  and  from  the  moment  that,  as  a  babe,  he 
instinctively  turns  for  sustenance  to  his  mother's 
breast  until  his  eyes  close  in  death  all  his  actions, 
whether  consciously  or  unconsciously,  are  directed 
toward  the  accomplishment  of  two  single  objects, 
— to  preserve,  prolong,  and  broaden  his  own  exist 
ence,  and  to  perpetuate  that  existence  by  transmis 
sion  to  his  offspring. 

260 


ON    EDUCATION 

Education,  then,  is  the  science  of  life.  It  is  the 
learning  how  to  live  well.  In  fine,  stated  more 
broadly,  at  the  risk  of  repetition,  it  is  the  develop 
ment  and  training  of  all  the  faculties  which  enable 
man  to  attain  the  broadest  and  most  complete  life 
in  himself,  and  transmit  it  to  those  who  are  to  come 
after  him. 

Such  an  education  as  is  here  endeavored  to  be 
defined  is,  as  the  definition  implies,  naturally  divided 
into  physical,  moral,  and  intellectual.  It  may  be 
treated  of  under  each  subdivision,  though,  of  course, 
there  is  no  sharp  line  of  demarcation  between  them, 
each  blending  to  a  greater  or  less  extent  with  both 
the  others. 

Physical  education  has  been  named  first,  because, 
obviously,  both  in  the  order  of  nature  and  in  that 
of  importance,  it  occupies  the  first  place.  They 
deserve  little  sympathy  and  should  be  heard  with 
little  patience  who,  affecting  to  despise  the  body  as 
a  tenement  of  clay,  fix  their  attention  wholly  upon 
intellectual  or  spiritual  objects,  aiming  at  a  sort  of 
ethereal  existence,  which  seeks  to  free  the  spirit  from 
the  prison-house  in  which  it  is  confined  in  utter  dis 
regard  or  wanton  violation  of  the  laws  of  physical 
life.  To  mortify  the  body  by  any  species  of  torture, 
—  by  confinement,  emaciation,  flagellation,  or  the 
like, —  with  a  view  of  purifying  or  elevating  the  soul, 
would  seem  about  as  rational  as  to  deprive  a  loco 
motive  of  its  due  supply  of  water,  to  stave  in  its 
boiler  or  distort  its  piston-rod,  with  a  view  to  make 

261 


ADDRESS 

it  more  effectually  generate  steam  or  move  over  the 
rails.  There  is  about  as  much  merit  in  a  self-imposed 
denial  of  the  natural  amount  of  food  by  fasting  as 
there  would  be  in  depriving  one's  self  of  the  due 
proportion  of  atmospheric  air  for  respiration,  or  in 
ceasing  to  breathe  altogether.  True  education  must 
begin,  not  with  degrading,  but  with  elevating  and 
ennobling,  the  body ;  not  with  thwarting  its  natural 
functions,  but  with  perfecting  their  operation. 

Let  those  who  may  look  upon  this  as  a  very 
materialistic  view  reflect  that,  as  man  comes  into  the 
world,  the  only  way  in  which  his  existence  is  made 
manifest  to  himself  and  to  others  is  by  his  physical 
being;  that  life  itself  is  but  the  performance  by  the 
organs  of  the  body  of  their  proper  functions;  that 
the  essential  activities  of  individual  existence  are 
limited  almost  entirely  to  ministering  to  the  wants 
of  the  body,  and  protecting  it  from  injury  or 
destruction;  that  the  happiness  —  another  word  for 
well  living  —  which  we  all  strive  for,  is  dependent 
upon  bodily  condition, —  and  they  may  perhaps 
modify  their  views  and  come  to  acknowledge  a 
due  appreciation  of  the  importance  of  physical  edu 
cation. 

Physical  education  is  not  confined  to  mere  bodily 
exercise,  however  scientifically  systematized  or  pur 
sued.  It  has  a  far  broader  scope.  The  gymnasium 
is,  after  all,  but  an  expedient  rendered  necessary  by 
certain  unnatural  conditions  which  civilization  im 
poses.  In  a  state  of  nature,  man  needs  no  artificial 

262 


ON    EDUCATION 

training.  The  use  and  employment  of  his  faculties 
in  the  essential  activities  of  life,  in  defending  him 
self  against  danger,  in  seeking  and  procuring  food 
and  shelter,  in  rearing  and  protecting  offspring,  give 
to  the  organs  of  his  body  the  play  which  is  natural 
to  them,  and  which  is  conducive  to  their  most  per 
fect  development  and  healthful  operation.  The 
condition  of  man  is,  then,  similar  to  that  of  other 
animals.  The  eagle  whose  flight  is  among  the 
clouds  and  whose  pinions  are  daily  spread  in  bat 
tling  with  the  storm,  the  lion  roaming  over  the 
desert  in  search  of  prey,  the  capture  of  which  de 
pends  upon  tireless  activity,  need  no  artificial  exer 
cise.  Civilization,  with  its  diversified  pursuits,  the 
drains  which  it  makes  upon  bodily  vigor  by  occupa 
tions  often  the  reverse  of  natural,  its  overtaxing  of 
the  mental  as  compared  with  the  physical  energies, 
demands  artificial  means  of  restoration  or  invigora- 
tion.  Without  denying  the  value  of  these,  it 
would  be  a  narrow  conception  of  the  subject  to 
assume  that  this  is  all  that  is  meant  by  physical 
education. 

If  physical  education  be  the  acquisition  of  that 
training  and  knowledge  which  enables  man  to  pre 
serve  physical  health  and  vigor,  so  that  life  may  be 
protected,  enjoyed,  prolonged,  and  perpetuated,  it  is 
obvious  that  it  must  begin  with  a  knowledge  of  the 
body,  its  various  organs,  their  functions  and  modes 
of  action.  In  other  words,  it  must  begin  with 
physiology.  That  is  to  say,  it  must  begin  with 

263 


ADDRESS 

physiology  when  the  learner  enters  upon  the  acqui 
sition  of  that  artificial  education  which  civilization 
imposes ;  for  during  the  period  of  infancy  the  child, 
if  properly  protected  and  not  unwisely  interfered 
with,  will  enjoy  sufficient  bodily  activity  to  insure 
perfect  health.  The  maxim  of  the  ancient  Greek 
philosopher,  "  Know  thyself,"  is  the  foundation  of 
physical  as  well  as  of  moral  or  intellectual  education. 
That  this  obvious  truth  is  always  duly  recognized 
no  one  familiar  with  the  systems  of  education  even 
of  the  present  day  would  contend.  Who  has  not 
often  wondered,  in  looking  over  the  course  of  study 
prescribed  in  schools,  colleges,  and  universities,  to 
note  the  absolute  silence  maintained  upon  this  all- 
essential  subject?  Ample  provision  is  there  often 
found  for  cramming  the  student  with  all  sorts  of 
knowledge  except  that  most  essential  to  his  own 
well-being.  In  these  institutions  he  might  be 
taught  all  that  relates  to  the  formation  of  the  outer 
universe, — geography,  geology,  chemistry,  astron 
omy;  he  might  learn  to  load  his  memory  with  a 
vast  mass  of  rubbish  under  the  name  of  history, 
and  win  applause  by  reciting  without  a  skip  the 
barbaric  names  of  the  sovereigns  of  the  English 
Heptarchy,  or  the  no  less  uncouth  ones  of  the 
French  monarchs  from  the  days  of  Clovis  to  those 
of  Charlemagne;  he  might  command  the  highest 
honors  by  writing  a  Greek  ode  or  a  Latin  oration  ; 
and  yet,  after  all,  be  graduated  and  leave  the  school 
to  enter  upon  the  active  duties  of  life  with  the  most 

264 


ON    EDUCATION 

meager  and  imperfect  idea  of  the  constitution  of  his 
own  body. 

Why  should  this  be  so?  Why  should  not  the 
study  of  the  laws  of  health,  so  essential  to  happiness, 
so  indispensable  to  success  in  all  vocations  of  life, 
be  included  in  a  collegiate  or  university  course  ? 
Why  should  not  the  student  be  taught  what  are  the 
normal,  proper,  and  healthy  functions  of  the  body, 
so  that  he  may  know  how  to  avoid  injuring  them  by 
neglect,  or  straining  them  by  improper  or  abnormal 
exercise  ?  Why  should  it  not  be  demonstrated  to 
him,  until  it  becomes  fixed  in  his  mind  as  an  axio 
matic  truth,  that  excess  is  invariably  followed  by 
exhaustion  and  consequent  impairment?  Why  should 
he  not  learn  the  laws  of  dietetics,  so  that  he  may 
know  what  food  to  select  and  what  to  reject,  which 
is  wholesome  and  which  injurious?  A  time  will 
come — it  has  no  doubt  already,  to  a  certain  extent, 
come — when  these  studies,  instead  of  being  thrust 
aside  as  quite  unworthy  the  attention  of  grave  pro 
fessors,  will  be  placed  in  the  very  front  of  the  cur 
riculum  of  education. 

We  have  only  to  look  at  ourselves  to  perceive 
how  much,  not  only  of  our  happiness,  but  of  our 
capacity  to  perform  the  functions  and  discharge  the 
duties  of  life,  depends  upon  health,  physical  vigor, 
and  animal  spirits;  to  know  that  depression  of 
mind,  melancholy,  and  discouragement  are  the  at 
tendants  of  a  low  degree  of  vitality ;  that  the 
intellect  itself  is  the  slave  of  the  body ;  and  that 

265 

R 


ADDRESS 

fancy    soars    upon    golden  pinions  or  droops   with 
leaden  wings,  according  to  physical  condition. 

It  is  not  proposed,  nor  would  time  permit,  to  fol 
low  the  development  of  this  subject  to  its  legitimate 
conclusions.  Before  dismissing  it,  however,  one 
closing  remark  may  perhaps  be  made.  No  greater 
crime  against  education  can  be  imagined  than  that 
which  is  committed  by  those  who,  having  the  train 
ing  of  the  young  committed  to  their  care,  allow  the 
cultivation  of  the  mind  to  be  pursued  at  the  ex 
pense  of  the  body.  Long  experience  has  demon 
strated  that  a  certain  number  of  hours  of  the  day 
can  be  profitably  devoted  to  study.  The  effort  to 
go  beyond  the  prescribed  limit  is  productive  of 
disastrous  results :  weariness,  exhaustion,  and  con 
sequent  impairment  of  both  body  and  mind.  If 
teachers,  proud  to  see  their  classes  make  a  good 
showing,  and,  therefore,  prone  to  stimulate  them  to 
high  exertions,  could  realize  the  incalculable  mis 
chief  their  childish  vanity  begets,  when  they  not 
only  permit  but  encourage  a  bright  pupil  to  study 
beyond  the  prescribed  time  and  forego  the  hours  of 
healthy  exercise  and  recreation,  in  order  to  prepare 
himself  for  a  brilliant  examination,  or  to  win  some 
coveted  prize  and  reflect  credit  upon  the  institution, 
they  would  soon  desist  from  their  unpardonable 
violation  of  the  laws  of  sound  education.  If  they 
would  only  reflect,  they  would  see  that  domestic 
animals  are  treated  with  more  sense  and  more  con 
sideration.  Far  better  that  the  pupil  should  be 

266 


ON    EDUCATION 

looked  upon  as  a  dull  scholar,  and  lag  at  the  foot 
of  his  class,  than  that  he  should  break  down  his 
health  in  an  unnatural  effort  to  accomplish  intel 
lectual  feats  beyond  his  normal  strength.  In  the 
race  of  life,  in  the  contest  for  that  which  the  world 
looks  upon  as  success,  and  for  the  attainment  of 
which  the  advantages  of  education  are  most  com 
monly  sought, — the  possession  of  wealth,  or  the 
enjoyment  of  position,  office,  or  rank, —  the  dull 
scholar,  leaving  school  with  health  and  animal 
energy  unimpaired,  is  very  apt  to  have  more  than 
an  even  chance  of  distancing  the  one  whose  consti 
tution  has  been  undermined  by  overstudy;  whilst  in 
the  enjoyment  of  life — health,  peace,  happiness  — 
he  will  be  sure  to  outstrip  him.  That  which  is  true 
of  the  individual  is  also  true  of  the  mass  or  aggre 
gation  of  individuals  composing  the  community 
or  State.  The  strongest  and  most  vigorous  race  will 
always  be  the  dominant  race,  not  only  in  war,  but 
in  commerce  and  other  pursuits. 

The  second  division  of  our  subject  concerns  the 
moral  side  of  our  being.  While  physical  education 
begins  and  ends  with  the  individual,  moral  educa 
tion,  the  next  in  the  order  of  nature  as  well  as  of 
mportance,  deals  with  him  not  as  an  isolated  entity, 
but  as  a  member  of  a  group  or  species.  The  aim 
and  scope  of  this  education  are  to  inculcate  upon 
the  individual  the  proper  principles  and  rules  of 
conduct  to  be  adopted  by  him  toward  others,  in 
relation  to  the  family,  to  society,  and  to  the  State. 

267 


ADDRESS 

Recognizing  that  I  am  speaking  to  the  teachers  of 
secular  and  not  religious  schools,  I  do  not  include 
in  this  definition  man's  relation  to  the  Deity. 
Addressing  a  body  created  and  supported  by  the 
State,  it  is  proper  that  my  remarks  should  be 
restricted  to  a  view  of  education  from  the  stand 
point  of  the  State,  and  not  from  that  of  any  creed 
or  dogma ;  from  the  standpoint  of  reason  alone, 
and  not  reason  guided  by  faith. 

It  has  been  objected  in  some  quarters  that  moral 
education  is  unattainable  without  religion,  and  that 
schools  where  religious  teaching  does  not  constitute 
a  part  of  the  course  are  pernicious  and  baneful. 
These  objections  assume  that  there  is  a  conflict 
between  the  moral  education  which  reason  indicates, 
and  that  which  religion  inculcates.  But  why  this 
assumption?  To  reconcile  religion  with  science,  to 
show  that  the  accents  of  revelation  are  in  unison 
with  the  voice  of  reason,  has  occupied  the  labors  of 
not  a  few  of  the  brightest  intellects  which  the  world 
has  produced.  These  enlightened  men  have  failed 
to  see  any  menace  to  faith  in  the  teachings  of 
science.  Why  should  such  a  menace  be  assumed 
to  exist  upon  the  subject  of  morality?  It  would 
be  strange  indeed  if,  upon  a  broad  and  comprehen 
sive  view  of  the  subject,  it  were  not  found  that  the 
moral  education  which  pure  reason  leads  us  to  adopt 
is  the  same  as  that  which  pure  religion  inculcates, — 
in  other  words,  that  the  conclusion  reached  by  one 
is  the  same  as  that  arrived  at  by  the  other. 

268 


ON    EDUCATION 

It  should  be  noted,  however,  that  the  word 
"  religion  "  is  used  in  this  connection  to  express  an 
idea  wholly  distinct  from  theology,  if  we  accept 
religion  as  the  work  of  God,  theology  must  still 
forever  remain  the  work  of  man.  Stripped  of  all 
its  non-essential  or  conventional  adjuncts,  of  all  the 
refinements  which  casuistry  has  weaved  around  it, 
is  religion  aught  more  than  morality  divinely  taught, 
— a  code  of  ethics  believed  and  accepted  by  man  as 
promulgated  and  sanctioned  by  the  Deity  ?  When 
the  historian  describes  the  Jewish  lawgiver  descend 
ing  from  Sinai,  bearing  in  his  hands  the  tables  of  the 
Commandments,  and  shows  us  the  tribes  of  Israel 
accepting  these  as  the  rules  traced  by  the  finger  of 
Jehovah  for  their  guidance,  he  describes  the  laying 
of  the  foundation  of  the  Jewish  religion.  And  yet 
what  were  those  Commandments  but  a  compendious 
code  of  moral  conduct  ?  When  the  same  historian 
records  or  collects  the  teachings  of  Christ,  what 
else  does  he  present  to  our  mind  but  rules  of 
conduct,  laws  governing  man  in  his  relation  to  his 
fellow  men,  precepts  for  guidance  in  his  actions  as  a 
member  of  the  family,  of  society,  of  the  State? 
To  proclaim  these  rules,  and  to  teach  man  the  way 
to  observe  them,  was,  from  the  standpoint  of  history, 
the  beginning  and  the  end  of  the  mission  of  Christ 
upon  earth.  Theology  came  afterward.  Councils 
and  synods,  with  their  disputations  upon  points  of 
doctrine,  followed  later.  Schisms,  sects,  and  bloody 
wars,  born  of  the  spirit  of  controversy,  were  subse- 

269 


ADDRESS 

quently  ushered  in  by  time.  The  imagination  of 
man  wove  a  subtle  fabric  around  the  simple  words 
of  the  Master.  But  religion — religion  essentially 
considered — is  to-day  as  it  was  when  Christ  pro 
nounced  the  Sermon  on  the  Mount  or  Paul  preached 
to  the  Athenians,  conduct  conformable  to  the  rules 
accepted  as  God-given. ' 

The  consonance  of  reason  with  religion  upon  this 
subject  may  be  stated  in  one  word.  There  is  not 
contained  in  the  books  of  religion  one  single  essen 
tial  precept  or  rule  of  conduct,  one  single  essential 
commandment  to  do  or  to  refrain  from  doing,  which 
is  not  conformable  to  pure  reason,  unaided  by  reve 
lation. 

Moral  education,  as  already  stated,  has  for  its 
object  the  regulation  of  conduct  toward  others.  In 
what  ideas  and  what  necessities  it  is  founded  may 
perhaps  be  expressed  by  an  illustration.  Were  a 
man  living  alone  upon  an  island,  it  would  be  diffi 
cult  to  consider  him  subject  to  any  moral  laws.  His 
round  of  actions  would  all  center  in  himself.  His 
whole  time  would  be  spent  in  ministering  to  his 
own  wants,  protecting  himself  against  dangers  that 
menaced  his  life  or  health,  procuring  the  means  of 
sustenance  or  shelter.  But  the  moment  that  another, 
recognized  as  an  equal,  was  introduced  to  share  his 
solitude  a  certain  limitation  would  of  necessity  be 
imposed  upon  him.  His  freedom  would  perforce 
be,  to  a  certain  extent,  restricted.  Another  hav 
ing,  like  himself,  the  right  of  occupation  and  of 

270 


ON   EDUCATION 

sustenance,  in  order  to  render  the  existence  of 
both  possible,  he  would  unavoidably  be  compelled 
to  yield  something  of  the  unbounded  freedom  of 
action  which  he  otherwise  had  enjoyed.  Each  recog 
nizing  the  other  as  an  equal,  the  concessions  on  both 
sides  would  necessarily  be  equal.  When  in  the  little 
community  thus  composed  each  respected  the  equal 
rights  of  the  other, —  for  instance,  if,  when  one  had 
taken  possession  of  a  particular  spot  for  his  habita 
tion,  the  other  forebore  to  trespass  upon  it ;  or  if  he 
had  obtained  something  as  the  result  of  his  individ 
ual  exertions,  such  as  a  fruit  of  the  forest,  a  bird  of 
the  air,  or  a  beast  of  the  field,  the  other  abstained 
from  any  attempt  to  deprive  him  of  it, — this  ele 
mental  society  would  so  far  be  governed  by  the  laws 
of  natural  justice.  And  this  means  nothing  more 
than  that  each  member  of  the  community  would 
follow  such  line  of  action  as  the  necessities  of  his 
situation  would  impose — laws  springing  spontane 
ously  from  his  condition  and  surroundings,  and  the 
violation  of  which  unaided  reason  would  teach  must 
necessarily  lead  to  the  disturbance,  if  not  the  de 
struction,  of  the  community,  and  the  consequent 
annihilation  of  the  advantages  which  flow  from  liv 
ing  in  a  state  of  society.  If  we  suppose  the  popu 
lation  of  the  island  to  be  increased  by  the  addition 
of  new  inhabitants,  the  elements  of  the  problem 
would  become  more  complicated,  but  the  problem 
itself  would  remain  essentially  the  same.  With 
the  advent  of  each  new-comer,  the  freedom  of  the 

271 


ADDRESS 

former  occupants  would  become  more  and  more 
restricted,  and  the  adjustment  of  the  rights  of  each, 
so  as  to  permit  to  all  equality  of  enjoyment,  would 
become  more  complex  and  difficult.  It  would 
require  greater  enlightenment  and  keener  powers  of 
perception  to  adjust  the  balance ;  but  the  end  to  be 
attained  would  remain  the  same  —  to  secure  to  each 
inhabitant  the  greatest  completeness  of  life  attain 
able  under  existing  conditions.  That  done,  the 
community  would  be  ruled  by  the  principles  of 
justice.  The  gradual  and  progressive  training  of 
the  first  inhabitant,  by  which  he  learned  to  perceive 
the  necessity  of  the  successive  limitations  imposed 
upon  his  freedom  of  action  by  changing  circum 
stances  and  surroundings,  and  voluntarily  to  submit 
to  such  limitations,  would  constitute  his  moral 
education. 

It  may,  then,  be  said  broadly  that  moral  education 
is  that  which  fits  men  for  the  conduct  they  should 
observe  toward  others,  so  that  each  may  live  the 
most  complete  life  attainable  in  a  state  of  society, 
each  enjoying,  in  their  highest  degree,  all  the  advan 
tages  which  accrue  from  social  intercourse  and  co 
operation,  and  yielding  in  return  as  little  of  his 
natural  freedom  or  individual  rights  as  possible.  In 
other  words,  the  great  object  of  moral  education,  to 
express  it  in  a  single  sentence,  is  to  teach  men  to  be 
just. 

It  may  at  first  blush  be  said  that  if  this  be  so,  as 
the  sense  of  justice  is  innate  in  man,  this  education 

272 


ON    EDUCATION 

must  necessarily  be  very  simple.  But  a  little  re 
flection  will  soon  show  that  the  task  is  not  so 
easy.  Civilization  brings  with  it  certain  artificial 
conditions,  which  give  rise  to  problems  whose  solu 
tion  tasks  the  highest  powers  of  human  intelligence. 

Each  age  presents  its  own  complications.  We 
live  in  times  probably  not  more  troublous  than 
those  that  are  past  or  those  that  are  to  come ;  and 
yet  they  are  times  when  upon  questions  which 
lie  at  the  very  foundation  of  social  existence  the 
most  divergent  and  antagonistic  views  are  enter 
tained. 

Take  a  few  illustrations :  What  is  or  should  be 
the  legal  and  political  condition  of  woman  in  mod 
ern  society?  What  is  the  condition  which  justice 
demands  should  be  secured  to  her?  Have  we  not 
here  a  problem  of  the  the  gravest  difficulty?  The 
advent  of  Christianity  found  woman  occupying  in 
the  most  polished  and  enlightened  community  in 
the  world  a  position  of  absolute  inferiority.  She 
was  the  companion  of  man,  but  hardly  occupied  the 
place  of  wife,  as  we  have  come  to  understand  the 
term.  In  the  Middle  Ages — in  those  days  which 
we  are  so  fond  of  looking  back  to  as  the  cradle  of 
the  common  law — the  wife  was  bound  by  a  sacra 
mental  tie,  it  is  true;  but  still  her  inferior  position 
was  so  marked  that  her  legal  identity  was  absorbed 
in  that  of  her  husband,  and  she  had  of  herself  no 
separate  legal  existence  in  the  eye  of  the  law.  And 
such  continued  to  be  her  legal  condition  in  one  of 

273 


ADDRESS 

the  most  enlightened  nations  of  Europe  down  to  a 
very  recent  period.  The  steps  toward  her  emanci 
pation  have,  in  the  present  century,  been  very  great, 
no  doubt;  but  as  an  evidence  of  the  tardiness  with 
which  they  have  been  taken,  we  have  but  to  look 
at  the  statute-book  of  our  own  State.  Even  here, 
upon  this  Western  coast,  the  fetters  have  been 
struck  off  slowly  and  one  by  one.  Gradually  the 
laws  which  prohibited  a  woman  from  conveying  her 
property  without  the  consent  of  her  husband,  from 
making  any  contract  for  the  payment  of  money, 
have  been  repealed;  and  yet  it  was  not  until  the 
recent  session  of  the  Legislature  that  the  last  relic 
of  barbarism,  which  prevented  a  married  woman 
from  being  appointed  executrix  or  administratrix,  or 
from  acting  as  the  guardian  of  her  own  child,  was 
wiped  out.  And  what  is  the  position  which  woman 
is  to  occupy  legally  and  politically  in  the  future  ? 
This  is  a  grave  question.  Nor  let  it  be  said  that  it 
belongs  to  the  sphere  of  politics  alone.  It  is  a 
question  of  morals — a  question  of  justice. 

Again,  property  has,  by  universal  consent,  been 
considered  hitherto  as  one  of  the  rights  which  lie 
at  the  very  base  of  society.  That  a  man  owns 
what  he  has  acquired,  that  he  may  do  with  it  what 
he  pleases,  have  been  accepted  almost  as  axiomatic 
truths  since  the  existence  of  organized  government. 
And  yet  it  would  betray  a  purposed  ignorance  of 
what  is  going  on  around  us  to  deny  that  there  is  a 
spirit  abroad  which  threatens  this  very  foundation 

274 


ON   EDUCATION 

of  the  social  fabric.  From  the  day  when  a  French 
socialistic  writer  proclaimed  that  property  was  theft 
to  that  in  which  Henry  George  issued  his  last 
pamphlet,  denying  the  right  of  individual  owner 
ship  of  land,  there  has  been  a  gradually  growing 
agitation  upon  the  subject  of  property  rights.  Nor 
is  this  agitation  to  be  put  down  by  the  pooh-pooh 
ing  of  those  whom  it  most  nearly  affects.  The 
titled  nobleman,  sitting  in  the  ancestral  hall  which 
has  come  down  to  him  entailed  since  the  days  of 
William  the  First,  or  the  new-made  millionaire, 
reposing  in  the  palatial  mansion  built  but  yesterday 
with  the  proceeds  of  speculation  or  stock-jobbing, 
may  smile  in  fancied  security  and  deride  the  mutter- 
ings  of  the  threatened  storm;  but  as  long  as  poverty 
begets  hunger,  and  hunger  unchains  the  demons 
which  lurk  in  human  breasts,  it  will  behoove  those 
who  have  to  acquire  a  just  appreciation  of  the 
rights  of  those  who  have  not.  Nor,  again,  let  it  be 
said  that  this  is  purely  a  political  question.  It  is  a 
question  of  morals  —  a  question  of  justice. 

These  are  but  illustrations  of  the  problems  which 
surround  us  in  the  moral  world.  Many  more  are 
at  hand,  and,  did  time  permit,  could  be  adduced. 
Why  should  the  education  of  the  youth  of  the 
country  leave  them  uninstructed  upon  these  and 
similar  subjects  ?  These  are  questions  with  which, 
in  the  course  of  life,  in  their  capacity  of  citizens,  as 
voters,  legislators,  or  magistrates,  they  will  in  some 
form  have  to  deal. 

275 


ADDRESS 

Time  admonishes  me  to  hasten  to  say  a  few 
words  upon'  the  third  and  last  division  of  the  sub 
ject  before  I  close. 

Intellectual  education  is  enumerated  last,  because 
it  is  in  reality  subordinate  and  subsidiary  to  both 
physical  and  moral  education.  The  object  of  all 
study  is  knowledge,  and  the  value  of  the  study  is  in 
the  direct  ratio  of  the  usefulness  of  the  knowledge 
acquired.  Obviously,  that  knowledge  alone  is  use 
ful  which  enables  or  aids  us  properly  to  regulate 
our  actions,  either  as  individuals  or  as  members  of 
society. 

While  it  is  impossible  to  indicate  the  studies 
which  are  to  be  adopted,  I  may  perhaps  be  permitted 
to  make  a  few  observations  upon  the  limitations 
with  which  certain  studies  should  be  pursued. 

Take,  as  an  illustration,  the  study  of  grammar. 
I  have  looked  at  times  into  treatises  on  grammar 
placed  in  the  hands  of  very  young  boys  and  girls, 
and  confess  that  I  have  been  amazed.  The 
grammar  of  to-day,  even  that  which  is  intended  for 
children  of  immature  minds,  is  too  often  a  book  in 
which  the  author  seems  to  be  intent  rather  upon 
the  display  of  his  own  metaphysical  subtlety  and 
hair-splitting  ingenuity  than  the  imparting  of  useful 
knowledge.  Instead  of  simplifying,  the  purpose 
seems  to  be  to  make  the  subject  complex  and  diffi 
cult.  I  can  imagine  few  severer  tasks  that  could 
be  set  to  a  man  ot  mature  years  in  active  life — 
lawyer,  physician,  or  merchant — than  to  be  com- 

276 


ON    EDUCATION 

pelled  to  master  and  stand  a  creditable  examination 
upon  some  grammars  that  I  have  seen  put  into  the 
hands  of  young  lads  at  school.  The  waste  of  time 
entailed  by  the  immature  attempt  to  master  these 
absurd  books  is  enormous  and  irretrievable. 

The  truth  would  seem  to  be  that  it  is  contrary  to 
all  rules  of  orderly  education  to  put  a  grammar  into 
a  child's  hands,  especially  an  English-speaking  child. 
The  English  is  probably  the  simplest  of  the  gram 
mars  of  the  languages  of  Europe,  ancient  or  modern. 
Compared  with  those  of  the  Greek,  German,  or 
French,  it  is  simplicity  itself.  The  child,  if  kept 
away  from  contact  with  rude  or  vulgar  associates, 
will,  without  effort,  learn  to  speak  and  write  with 
substantially  grammatical  accuracy.  When  this  is 
attained,  when  the  student  has  reached  the  point 
where  he  can  speak  and  write  with  both  correctness 
and  ease,  he  can  then  learn  the  few  essential  rules — 
and  they  are  very  few — of  English  grammar.  He 
will  thus  be  taught  in  a  few  weeks  what  the  imma 
ture  mind  of  the  child  is  coerced  into  vain  efforts  to 
acquire  through  years  of  wearisome  and  repulsive 
labor. 

Another  subject  upon  which  I  might,  with  your 
indulgence,  wish  to  say  a  word,  is  that  of  the  study 
of  the  classics.  During  the  period  of  the  revival 
of  learning  which  followed  after  the  long  night  of 
the  Middle  Ages,  it  was  natural,  if  not  unavoidable, 
that  the  energies  of  men  intent  upon  the  acquisition 
of  knowledge,  or  inclined  to  cultivate  the  graces  of 

277 


ADDRESS 

belles-lettres  ^  should  be  devoted  to  the  study  of  the 
treasures  which  had  survived  the  wreck  of  Greece 
and  of  Rome.  The  works  of  the  master  spirits  of 
antiquity  had  come  down  through  the  centuries  as 
the  most  faultless  productions  of  periods  in  which 
the  human  mind  had  attained  to  a  degree  of 
perfection  in  art,  literature,  and  science,  with  which 
nothing  since  then  created  had  been  fit  to  bear  com 
parison.  The  consummate  beauties  of  the  tongue 
in  which  Homer  sung  to  the  princes  of  Attica,  or 
of  that  in  which  Cicero  addressed  the  multitude  in 
the  Forum,  were  revealed  to  the  student  of  the 
court  of  the  Medicis  or  of  Francis  the  First,  when, 
with  perhaps  one  single  exception,  the  languages  of 
modern  Europe  were  still  in  a  state  of  formation. 
Classic  literature  had  already  long  since  covered  the 
broad  fields  of  history,  eloquence,  and  poetry,  when, 
by  the  light  of  the  dawn  of  the  revival  of  learning, 
little  more  could  be  found  in  these  departments 
than  the  dry  chronicles  of  monasteries,  the  songs 
of  troubadours,  or  the  pedantic  disputations  of 
schoolmen.  The  growing  appetite  for  learning 
had  to  seek  gratification  in  the  productions  of  an 
tiquity  or  go  unappeased. 

It  was  of  course,  therefore,  that  in  the  acade 
mies,  the  colleges,  the  universities,  which  the 
enthusiasm  of  the  period  founded  and  endowed, 
the  study  of  Latin  and  of  Greek  should  constitute 
the  main,  if  not  the  entire,  pursuit  of  both  the 
teacher  and  the  taught ;  that  excellence  should  be 

278 


ON    EDUCATION 

measured  by  reference  to  these  old  standards;  and 
that  to  imitate  the  masterpieces  of  the  ancients 
should  be  the  ambition  of  every  learned  man. 
Honors  and  rewards  waited  upon  those  who  had 
attained  such  excellence.  Princes  and  potentates 
vied  with  each  other  in  drawing  to  their  courts 
and  numbering  among  their  retainers  the  renowned 
scholars  of  the  day.  It  comported  with  the  con 
servative  spirit  of  the  times,  too,  that  institutions 
of  learning  founded  upon  these  principles  and  aim 
ing  at  the  accomplishment  of  these  objects,  should 
for  a  long  period  have  followed  in  the  path  which 
was  originally  traced  for  them,  and  that  for  genera 
tions  thereafter  scholarship  should  have  been  the 
synonym  of  proficiency  in  the  ancient  languages, 
and  a  liberal  education — the  education  of  a  gentle 
man —  should  have  represented  the  capacity  to 
understand  the  excellences  and  imitate  the  beauties 
of  their  great  masters. 

It  would  have  been  strange,  however,  if  in  the 
course  of  time  a  reaction  had  not  taken  place. 
With  the  march  of  civilization,  the  discoveries  of 
science,  the  development  of  the  human  mind,  the 
nations  of  Europe  came,  each  in  turn,  to  have  a 
language  as  fixed,  as  copious,  as  capable  of  express 
ing  the  most  powerful  or  most  subtle  thoughts  of 
the  mind  or  emotions  of  the  heart  as  the  tongue 
of  Plato  or  of  Sophocles,  of  Cicero  or  of  Horace. 
In  turn,  each  people  came  to  have  its  own  litera 
ture,  the  natural  outgrowth  of  the  genius  which 

279 


ADDRESS 

sprung  from  its  own  race  characteristics  and  sur 
roundings.  Time  gave  birth  to  poets,  historians, 
orators  who  might  well  claim  a  place  alongside 
of  even  the  most  illustrious  names  of  antiquity. 
Whatever  predilection  might  have  been  transmitted 
from  generation  to  generation  for  the  great  things 
accomplished  in  the  past,  it  would  have  been  a 
matter  of  wonder  if  the  student  had  not  at  times 
paused  to  institute  comparisons  between  the  pro 
ductions  of  his  living  mother  tongue  and  those 
of  languages  which  had  been  dead  for  centuries. 
The  youth  who,  reading  the  speeches  of  Burke  or 
Webster,  had  become  imbued  with  the  grandeur  of 
the  philosophical  statesmanship  of  the  one,  or  the 
broad,  lofty,  and  magnanimous  patriotism  of  the 
other, — who  as  a  schoolboy  had  recited  with  glow 
ing  cheek  and  beating  heart  the  stately  peroration 
of  the  British  orator  upon  the  impeachment  of 
Hastings,  or  the  still  grander  and  sublimer  one 
of  the  American  in  his  reply  to  Hayne, — could  not 
but  pause  to  ask  if  in  anything  that  Greek  or 
Roman  had  ever  uttered  a  loftier  height  of  thought 
or  expression  had  been  reached.  He  who  had  seen 
unfolded  upon  the  stage  the  creations  of  the  genius 
of  Shakespeare  could  not  but  ask  whether  even 
the  Athenian  dramatists — whether  Sophocles  or 
^Eschylus — had  ever  depicted  the  emotions  or 
passions  of  men  in  truer  or  more  striking  colors. 

That  the  reaction  should  have  taken  place,  and 
should  now  continue  to  take  place,  was  inevitable. 

280 


ON    EDUCATION 

However  much  the  spirit  of  conservatism  may  con 
tend  to  the  contrary,  it  is  obvious  to  any  one  at  all 
familiar  with  the  march  of  the  human  intellect  that 
classical  studies  do  not  hold  to-day  in  the  scheme  of 
education  the  place  which  they  did  one  hundred  or 
fifty,  or  even  twenty-five,  years  ago.  They  are  not 
wholly  abandoned,  it  is  true,  nor  is  it  desirable  that 
they  should  be ;  but  they  are  no  longer  permitted 
to  constitute  the  whole  or  even  the  most  essential 
part  of  the  curriculum. 

It  may  be  asked  if  it  is  intended  to  deny  the 
value  of  the  study  of  the  classics  as  a  mental  disci 
pline.  By  no  means.  The  discipline  acquired  by 
such  study  is,  if  not  the  best,  still,  beyond  dispute, 
excellent.  The  intelligent  mastery  of  the  ancient 
languages  will  still  lead  undoubtedly,  to  the  forma 
tion  of  correct  taste  in  literature,  and  aid  in  the 
attainment  of  perfection  in  style,  even  in  the  verna 
cular.  Such  study  has  its  just  value,  no  doubt,  and 
in  certain  branches  of  education  will  still  long  con 
tinue  to  be  pursued.  The  objection  is  to  making 
it  the  staple  of  collegiate  education  under  all  circum 
stances.  The  question  is,  Can  it  be  pronounced  to 
be  the  best  for  all  men  who  seek  to  obtain  an 
education  ?  If  the  student  is  to  become  a  soldier, 
and  is  destined  to  devote  his  life  to  the  science  of 
war,  it  must  be  evident  that  his  ability  to  read 
Pindar's  odes  or  Virgil's  bucolics  in  the  original  is 
for  him  an  attainment  of  little  value,  and  that  the 
length  of  time  spent  in  reaching  that  attainment  has 

281 
s 


ADDRESS 

been,  if  not  €  wasted,  at  least  not  most  profitably 
applied.  If  he  is  to  spend  his  life  in  a  counting- 
house,  and  his  success  depends  upon  his  acquaint 
ance  with  the  intricacies  of  modern  commerce,  it 
will  benefit  him  little  to  know  in  detail  the  political 
condition  of  the  Grecian  states  during  the  war  of 
the  Peloponnesus,  even  if  he  should  acquire  that 
knowledge  from  the  luminous  pages  of  Thucydides. 
The  point  is  not  to  abolish  the  study  of  the  classics 
altogether ;  it  is  to  restrict  it  to  those  who  may  by 
that  study  best  fit  themselves  for  the  activities  of 
that  life  which  they  are  destined  to  live — among 
whom  might  be  classed  the  theologian,  the  lawyer, 
the  orator,  the  historian,  and  all  who  make  of  litera 
ture  a  pursuit. 

This  leads  to  the  consideration  of  the  chief 
truth,  which  may  deserve  a  more  attentive  con 
sideration.  Every  study  must  be  calculated  to 
impart  discipline  or  knowledge.  A  study  properly 
selected  should  impart  both;  and  that  study  is,  in 
each  individual  instance,  the  best  and  most  eligible 
which  simultaneously  imparts  both  in  the  greatest 
possible  degree.  If  the  student  is  destined  for  the 
law,  a  thorough  course  of  mathematics  will,  no  doubt, 
give  his  mind  some  useful  discipline;  whilst  it  must 
be  admitted  that  the  amount  of  knowledge  imparted, 
viewed  from  the  standpoint  of  usefulness  in  his  pro 
fession,  is  comparatively  trifling.  If,  on  the  other 
hand,  his  purpose  is  to  become  a  civil  engineer, 
the  study  of  the  pandects  of  Justinian,  the  treatises 

282 


ON    EDUCATION 

of  Puffendorf,  or  the  commentaries  of  Blackstone, 
while  affording,  no  doubt,  healthy  mental  exercise, 
would  hardly  assist  him  in  building  the  loop  over 
the  Tehachapi  or  running  a  tunnel  on  the  Corn- 
stock.  Were  it  not  the  better  scheme  of  education 
that  the  engineer  should  leave  law-books  to  the 
man  of  law,  and  the  lawyer  should  abandon  the 
mysteries  of  Napier's  logarithms  or  Newton's 
Principia  to  the  man  of  science?  Would  not 
both  thereby  reap  the  advantages  of  an  education 
which  affords  discipline  and  information  at  the  same 
time? 

The  brief  duration  of  human  life  forbids  even 
an  attempt  at  the  acquisition  of  universal  knowl 
edge.  The  still  briefer  time  which  may  properly 
be  devoted  to  education,  covering  in  all  seldom 
more  than  a  third  the  average  length  of  life,  makes 
it  folly  to  attempt  all  the  studies  which  it  might  be, 
in  some  degree,  useful  or  agreeable  to  pursue.  If 
the  period  of  education  be  one  of  preparation  for 
subsequent  activities,  it  would  seem  as  if  the  best 
possible  use  that  can  be  made  of  it  is  to  devote  it 
to  that  preparation  which  will  best  enable  the  stu 
dent  to  discharge  the  duties  of  his  own  individual 
life.  To  attain  success  or  eminence  in  any  business 
or  pursuit  demands  nowadays  special  aptitude  and 
undivided  devotion.  The  days  of  universal  geniuses, 
if  they  ever  existed,  are  past.  The  men  of  to-day 
are  compelled  to  confine  themselves  not  only  to 
particular  professions  or  occupations,  but  each  pro- 

383 


ADDRESS 

fession  is  itself,  in  turn,  subdivided  into  branches. 
The  age  is  essentially  one  of  specialists. 

The  lesson  to  be  derived  from  these  undoubted 
truths  would  seem  to  be,  that  intellectual  education 
should,  from  as  early  a  period  as  possible,  be  directed 
to  the  attainment  of  that  special  knowledge  and 
discipline  which  is  best  adapted  to  the  business  or 
pursuit  which  the  student  is  destined  to  follow.  As 
soon  as  those  branches  are  mastered  which  are  com 
mon  to  all  education, —  reading,  writing,  and  the 
rudiments  of  arithmetic, —  the  whole  subsequent 
intellectual  training  should  be  governed  by  keeping 
steadily  in  view  the  end  to  be  attained.  Why 
should  not  a  youth  destined  to  be  a  lawyer  be  trained, 
as  soon  as  his  vocation  is  ascertained,  in  those  studies 
which  are  specially  connected  with  the  legal  profes 
sion  ?  Why  should  not  the  same  be  true  of  the 
physician,  the  soldier,  the  merchant,  or  the  man  of 
science  ?  Each  of  these,  by  pursuing  the  studies 
which  are  peculiar  to  the  other,  may  undoubtedly 
gain  some  mental  discipline,  but  by  devoting  him 
self  to  the  studies  which  are  peculiar  to  his  own 
selected  pursuit,  he  acquires  both  the  knowledge 
and  the  discipline  at  the  same  time. 

In  conclusion,  it  may  be  asked,  is  there  any  limit 
to  education  ?  Is  the  human  race  susceptible  of 
indefinite  perfectibility  ?  Is  perfection  itself  attain 
able  ?  If  the  object  of  education  is  to  fit  men  for 
complete  living,  both  from  an  individual  and  from 
a  social  standpoint,  will  there  ever  come  a  time  when 

284 


ON    EDUCATION 

this  object  will  be  attained?  These  questions  it 
would  be  presumptuous  to  undertake  to  answer. 
This  much  at  least  we  know :  If  perfection  is  not 
within  the  reach  of  man,  improvement  certainly  is. 

You,  the  teachers  of  the  State,  need  not  despair, 
then,  if  the  full  proportions  of  the  ideal  which  you 
have  placed  before  your  mind  cannot  be  attained. 
The  good  which  you  can  accomplish  is  still  suffi 
cient  to  gratify  any  rational  aspirations.  With  faith 
in  your  mission,  and  courage  in  the  discharge  of 
your  duties,  persevere  in  your  noble  task.  And 
behold,  not  only  in  the  approval  of  the  present  and 
the  anticipated  gratitude  of  the  future,  but  in  the 
amelioration  of  the  human  race,  the  reward  of  your 
labors. 


285 


ADDRESSES    ON    VARIOUS    OCCASIONS 


STEPHEN    M.  WHITE 

THE  following  eulogy  was  delivered  in  San  Francisco  at  the 
banquet  of  the  Iroquois  Club,  given  in  commemoration  of  Wash 
ington's  Birthday,  on  the  26th  day  of  February,  1901.  The 
banquet  had  been  postponed  from  the  zzd  on  account  of  the  death 
of  Senator  White,  which  occurred  on  the  zoth  of  the  month. 

MR.  PRESIDENT,  AND  GENTLEMEN:  In  the  olden 
time,  it  was  the  pious  custom  of  some  Catholic 
countries  to  erect  along  the  public  highways  shrines 
where  the  wayfarer  might  not  only  pause  for  rest, 
but  might  find  in  the  contemplation  of  higher 
things  solace  in  his  fatigue  and  renewed  courage  to 
pursue  his  journey.  Like  these  ancient  places  of 
worship,  national  festivals  are  strewn  along  the 
course  of  our  life.  At  their  dawn,  the  people  lay 
aside  for  a  day  their  accustomed  pursuits  to  meditate 
upon  the  lessons  taught  by  events  marking  epochs 
in  their  history,  or  to  do  honor  to  some  exalted 
character  whose  example  shines  like  a  beacon-light 
along  their  pathway.  The  purification  of  soul  and 
elevation  of  purpose  which  the  devotee  drew  from 
the  consecrated  shrine  the  nation  derives  from  these 
days  of  commemoration.  Like  him,  it  suspends 

289 


EULOGY 

at  intervals  its  onward  march,  pauses  to  survey 
what  has  already  been  accomplished, — the  laurels 
reaped  upon  the  battle-field,  the  securer  triumphs 
gathered  from  the  realms  of  peace, — and  abandons 
itself  to  the  contemplation  of  its  true  destiny 
and  the  means  by  which  that  destiny  may  best  be 
achieved. 

The  day  set  apart  and  dedicated  to  the  commem 
oration  of  the  birth  of  Washington  has  been  for 
now  more  than  a  century  a  day  of  praise  and  rejoi 
cing  throughout  the  land.  Yet,  as  we  observe  it  at 
this  moment, — at  an  hour  deferred, — we  cannot  be 
unmindful  of  the  fact  that  the  day  itself  was  spent 
by  the  Democracy  of  the  State  in  mourning  and 
in  tears.  On  that  day  the  most  illustrious  of  her 
champions  had  been  stricken  down  in  the  meridian 
of  his  career,  and  all  of  him  that  was  mortal  was 
fast  vanishing  into  the  shadow  of  the  dark  house 
and  the  long  sleep  which  await  all  the  sons  of  men. 
In  the  presence  of  a  death  so  mournful,  a  loss  so 
irreparable,  it  would  be  doing  violence  to  our  own 
feelings  not  to  turn  a  while  from  the  special  ob 
servances  appropriate  to  this  occasion,  to  give  some 
expression,  however  inadequate,  to  our  sorrow,  and 
to  voice,  however  feebly,  our  sense  of  bereavement. 

It  is  eminently  appropriate  that  this  mournful 
tribute  should  be  paid  here  and  now;  for  though 
in  a  broad  sense  our  dead  leader  belonged  to  the 
whole  State,  yet,  by  a  nearer  and  more  especial 
title,  may  the  Democracy  of  California  claim  him  as 

290 


OF   STEPHEN    M.    WHITE 

her  own.  By  origin,  instinct,  and  lifelong  devotion 
he  was  hers, — hers  by  ties  as  close  and  indissoluble 
as  those  which  bind  the  mother  to  her  child, — hers 
by  the  reciprocal  bond  of  affection,  finding  outward 
and  visible  manifestation  in  the  great  rewards,  the 
ample  honors,  and  the  exalted  offices  which  it  had 
been  her  delight  and  her  pride  with  prodigal  hand 
to  shower  upon  him.  If  Democracy  means  to-day 
what  it  meant  in  the  days  of  its  great  founder, —  if 
it  still  represents  the  equality  of  men;  if  it  still 
stands  the  opponent  of  all  class  distinctions  ;  if  it 
still  clings  to  the  doctrine  of  equal  rights  to  all 
and  special  privileges  to  none ;  if  it  still  holds  as 
a  fundamental  truth  the  right  and  the  duty  of  the 
people  to  govern  themselves, — then,  well  may  the 
country  be  challenged  to  show  a  purer  embodiment 
of  Democracy  than  that  which  in  him  God  had 
vouchsafed  to  our  eyes. 

Sprung  from  the  people,  his  life,  true  to  its  origin, 
was  devoted  to  one  continuous  service  of  the  people. 
To  promote  their  cause  were  all  his  aspirations 
cherished ;  and  his  dearest  ambition  sought  no  other 
gratification  than  such  as  it  was  in  the  people's 
power  to  bestow.  In  this  age  of  gold,  when  wealth 
is  in  the  estimation  of  so  many  the  synonym  of 
worth,  he  never  bent  the  knee  before  the  power 
of  money.  At  a  time  when  capital  has  by  aggrega 
tion  and  concentration  acquired  such  an  ascendency 
as  not  only  to  dwarf  the  individual  man,  but  to 
overshadow  the  government  of  the  republic  itself, 

291 


EULOGY 

he  courted  not  its  favor,  and  never  sought  its  sup 
port.  Others  might  bend  their  necks  to  the  yoke, 
and  seek  political  honors  at  the  sacrifice  of  indepen 
dence.  His  were  loftier  aims.  From  that  hour  in 
his  boyhood  when  the  first  glimmer  of  a  seat  in  the 
highest  house  of  the  nation's  councils  dawned  upon 
him,  he  resolved  that  his  ambition  should  be  satisfied 
without  the  sacrifice  of  manhood,  without  the  taint 
of  corruption,  without  the  loss  of  individual  and 
absolute  freedom  of  thought  and  action.  The 
annals  of  our  State  contain  no  brighter  page  than 
that  which  records  the  fulfillment  of  that  pledge. 
Laws  may  decay  and  constitutions  may  perish,  but 
as  long  as  a  vestige  of  the  true  spirit  of  Democracy 
is  left  his  example  will  remain  to  inspire,  elevate,  and 
purify  the  aspirations  of  the  youth  of  the  State. 
The  future  historian  will  write  his  name  as  that  of 
one  who,  without  compromise  with  wrong,  attained 
the  highest  honors  which  the  State  could  confer; 
one  whose  lofty  purpose  and  sublime  declaration  — 
let  the  chronicler  blazon  the  sentence  in  letters  of 
gold — it  was  that  he  intended  "to  make  it  possible 
for  a  man  to  aspire  to  the  Senatorship  on  his  merits 
alone." 

Entering  the  Senate  of  the  United  States  while 
still  a  young  man,  he  took  his  place  the  peer  in 
character,  attainments,  eloquence,  and  statesmanship 
of  the  oldest  and  most  honored  of  those  with  whom 
in  official  station  he  stood  upon  an  equal  plane.  If 
it  be  true  that  that  once  august  body  has  degen- 

292 


OF   STEPHEN    M.    WHITE 

crated  into  an  assemblage  of  representatives  and 
servants  of  money, — if,  to  use  the  current  phrase,  it 
has  become  a  mere  millionaires'  club, —  the  con 
tamination  of  his  surroundings  never  touched  the 
Senator  from  California.  Others  might  fall  with 
servile  idolatry  before  false  idols;  his  faith  remained 
uncorrupted.  Others  might  abdicate  their  lofty 
mandate  to  become  the  tools  of  capital;  he  served 
but  one  master — the  people,  and  the  whole  people. 
Others  might  degenerate  into  mere  pawns  upon 
the  chessboard  which  the  spirit  of  commercialism 
manipulates  at  will  in  the  sordid  game  of  money- 
making;  he  surrendered  to  no  one  his  independence 
or  his  conscience.  The  blandishments  of  wealth 
were  powerless  to  allure  him ;  and  the  hired  audacity 
of  corruption  stood  awed  and  abashed  in  the  pre 
sence  of  his  integrity.  Poor  in  purse,  he  possessed 
a  treasure  beyond  the  might  of  gold  to  buy — he 
owned  himself. 

By  those  who  did  not  know  him  it  might  be 
imagined  that  a  character  so  exalted,  a  fidelity  to 
duty  so  unswerving  were  accompanied  with  an 
austerity  of  temperament  and  a  repellency  of  man 
ner  calculated  to  isolate  him  from  his  fellow  men. 
But  we  who  knew  him  know  that  it  was  not  so. 
His  nature  was  so  broad  and  catholic,  his  charity 
toward  all  so  unaffected  and  generous,  his  con- 
siderateness  for  the  feelings  of  others  so  tender  and 
unfailing,  that  in  the  breasts  of  those  who  were 
brought  in  contact  with  him  admiration  and  respect 

293 


EULOGY 

ever  shaded  off  into  personal  affection.  His  com 
manding  ability  engendered  no  envy.  His  assump 
tion  of  leadership  excited  no  jealousy.  It  seemed 
to  all  a  pleasure  to  further  his  cause  and  a  privilege 
to  do  him  honor. 

And  what  shall  be  said  of  those  intellectual  gifts 
now  buried  in  the  darkness  of  the  tomb  ?  What 
of  that  eloquence,  now  silenced  forever,  to  which 
popular  assemblies,  courts,  and  senates,  entranced 
by  the  combined  spell  of  splendid  imagery,  convin 
cing  logic,  and  resistless  conviction,  have  so  often 
listened  ?  Not  this  the  occasion  fitly  to  describe  or 
estimate  them.  This  much,  however,  it  may  be 
permitted  to  say :  The  imagination  of  the  orator 
never  hurried  him  beyond  the  limits  of  good  taste 
or  good  sense.  His  powers  of  reasoning  were  never 
employed  in  furtherance  of  a  dishonest  or  an  unjust 
cause.  The  intensity  of  his  convictions  and  the 
consciousness  of  his  own  rectitude  never  carried 
him  to  the  length  of  impugning  the  sincerity  or 
assailing  the  motives  of  an  antagonist.  The  current 
of  his  speech  flowed  like  a  placid  stream  in  whose 
waters  his  soul  was  mirrored ;  and  if  at  times,  under 
the  sway  of  deep  emotions  aroused  by  enterprises 
of  great  weight  and  moment,  its  tide  rose  and  swept 
onward  like  a  torrent  swollen  by  the  storms  of  win 
ter,  it  never  overflowed  its  banks,  spreading  ruin 
and  desolation  in  its  path. 

One  trait  of  his  character  we  recall  to-day  with 
an  especial  fondness.  He  was  a  Californian  —  in 

294 


OF   STEPHEN    M.  WHITE 

the  highest  and  best  sense  of  the  word,  intensely  a 
Californian.  Born  here,  he  had  never  crossed  be 
yond  the  boundaries  of  the  State  until  after  he  had 
passed  the  thirty-second  year  of  his  life.  And  the 
California  of  his  affection  was  not  the  State  that 
recent  agitators  have  schemed  for, —  not  a  Cali 
fornia  rent  in  twain,  halved  between  the  north  and 
the  south,  shattering  into  fragments  the  broad  alle 
giance  of  her  sons, —  but  the  California  of  to-day, 
and  of  the  days  of  the  Argonauts, —  California 
dowered  with  the  integrity  and  grandeur  of  her 
original  domain,  extending  the  majestic  sweep  of 
her  imperial  boundaries  from  Oregon  to  Mexico, 
and  from  the  Sierra  to  the  Pacific,  gathering  within 
her  ample  lap  all  the  varied  productions  of  her  soil 
and  clime,  from  the  gold  of  the  placers  washed  by 
the  melting  snows  of  Shasta  to  the  orange  and  cit 
ron  which  perfume  the  fragrant  groves  of  San  Diego, 
—  California,  the  land,  one  and  indivisible,  which 
her  sons  wandering  in  foreign  climes  dream  of  in 
slumbers,  and,  waking,  long  for,  yearning  for  the 
hour  of  return. 

But  this  is  not  the  occasion  to  pronounce  the 
eulogy  of  our  dead  friend.  Our  loss  is  too  recent, 
our  sense  of  bereavement  too  poignant  to  permit 
justice  to  his  character,  his  accomplishments,  and  his 
public  services  to  be  done  now.  At  no  distant  day, 
we  fell  assured,  a  fitter  opportunity  will  come.  When 
time  shall  have  assuaged  our  sorrow,  and  the  light 
of  our  reason  shall  no  longer  be  dimmed  with  tears, 

295 


EULOGY 

as  the  monument  which  a  grateful  people  have  pro 
jected  to  perpetuate  his  memory  stands  unveiled, 
that  hour  will  be  at  hand.  I  seem  to  see  that  monu 
ment  erected  in  some  public  place  of  the  city  which 
has  been  the  home  of  his  youth  and  manhood,  and 
in  which  his  ashes  repose.  I  see  it  as  loving  hearts 
would  ordain  it,  as  loving  hands  would  mold  and 
fashion  it.  Let  enduring  bronze  transmit  to  genera 
tions  yet  unborn  the  lineaments  of  that  face  and  the 
proportions  of  that  form  which  it  was  our  privilege 
to  see  in  the  flesh,  but  which  in  the  flesh  mortal 
eye  shall  see  nevermore.  Upon  each  side  of  its 
square  and  granite  base  let  bas-reliefs  typify  the  great 
epochs  of  his  career.  In  the  first,  let  him  be  repre 
sented  as  a  boy  upon  his  father's  farm,  holding  the 
plow  paused  in  mid-furrow  while  his  imagination  is 
dazzled  by  the  visions  which  the  veil  of  futurity, 
rent  by  his  young  ambition,  displays  before  his  eyes  ; 
in  the  second,  let  him  appear  in  the  full  maturity 
of  his  manhood  and  in  the  meridian  of  his  intellec 
tual  power  arguing  before  the  Supreme  Court  of  the 
United  States  the  constitutionality  of  the  Chinese 
Exclusion  Act ;  in  the  third,  let  him  be  seen,  his 
face  radiant  and  his  frame  dilated  with  the  realiza 
tion  of  his  boyhood's  aspirations,  as  he  receives  from 
the  Legislature  of  California  in  joint  convention 
assembled  the  announcement  that  he  is  the  State's 
chosen  Senator ;  in  the  fourth,  let  him  be  figured  at 
the  chairman's  desk,  quelling  with  outstretched  hand 
the  stormy  waves  of  the  National  Democratic  Presi- 

296 


OF   STEPHEN    M.   WHITE 

dential  Convention  assembled  at  Chicago.  Upon 
such  a  pedestal  let  there  be  raised  a  commanding 
statue,  representing  him  as  he  stood  in  his  place  in 
the  Senate  of  the  United  States  on  that  fateful  day 
of  April,  1898,  when,  breasting  misguided  public 
clamor,  and  with  prophetic  eye  foreseeing  the  dan 
gers  with  which  the  lust  of  empire  menaced  our 
institutions,  he  uttered  in  words  of  inspired  eloquence 
his  protest  against  the  declaration  of  war  with  Spain. 
Then,  as  the  veil  falls  from  the  monument  and  the 
glad  acclaims  of  the  assembled  multitude  die  upon 
the  air,  let  some  friend  worthy  to  perform  the  task 
recount  the  life,  commemorate  the  triumphs,  and 
voice  the  praises  of  Stephen  M.  White, 


297 


ADDRESS      AT      ELKS'      MEMORIAL 
SERVICE 

THIS  address  was  delivered  by  Mr.  Delmas  at  the  Elks'  Memorial 
Service,  held  in  the  Grand  Opera  House,  under  the  auspices  of 
San  Francisco  Lodge,  No.  3,  on  Sunday,  December  2,  1900. 

EXALTED  RULER,  LADIES  AND  GENTLEMEN:  — 
When  I  accepted  the  courteous  invitation  extended 
to  me  by  your  committee  to  participate  in  this 
solemnization,  I  was  informed  that  the  rule  and 
custom  of  your  order  required  that  the  subject  of 
my  address  should  be  the  immortality  of  the  soul. 

One  of  the  most  distinguished  living  prelates  of 
the  Catholic  Church  has  said :  "  One  Being  alone 
is  absolutely  immortal;  One  alone  has  no  begin 
ning  and  no  end;  and  that  Being  is  God."  To 
conceive,  therefore,  the  relative  immortality  of 
created  man,  we  should  first  conceive  the  absolute 
immortality  of  the  uncreated  God.  An  exhaustive 
development  of  so  vast  a  theme  within  the  briefness 
of  time  imposed  by  the  unavoidable  limitations  of 
this  occasion — were  it  even  otherwise  in  my  power 

298 


AT    ELKS'   MEMORIAL   SERVICE 

to  accomplish  it — is  manifestly  hopeless.  To 
attempt  it  would  be  to  endeavor  to  discuss  at  a 
breath  a  subject  which,  whether  considered  in  itself 
or  in  connection  with  its  necessary  relations,  tran 
scends  in  interest  and  far-reaching  importance  any 
which  has  ever  engaged  the  attention  of  mankind. 
I  must,  therefore,  throw  myself  upon  your  indul 
gence,  if  the  few  remarks  which  I  am  about  to 
make  shall  leave  your  expectations  unrealized  or 
your  minds  unsatisfied. 

In  contemplating  this  subject,  we  meet  at  the 
very  threshold  the  indisputable  fact  that,  explore  it 
in  what  epoch  or  in  what  region  we  may, — whether 
we  follow  it  until  it  vanishes  amid  the  mists  of 
fable  or  examine  it  to-day;  whether  we  study  it 
among  the  foremost  nations  of  the  earth  or  pursue 
it  among  tribes  upon  whom  civilization  has  never 
yet  shed  its  light, — the  history  of  the  human  race 
attests  that,  everywhere  and  at  all  times,  with  the 
most  exalted  as  with  the  humblest  of  mankind, 
there  has  ever  been  found  a  hope  of  immortality. 
Toward  the  light  which  the  desire  of  eternal  life 
diffuses,  man  has  ever  turned  his  eyes  with  an  im 
pulse  as  spontaneous  and  irresistible  as  that  which 
lifts  the  flower  toward  the  beams  of  the  sun  or 
guides  the  infant  to  the  mother's  breast.  The 
yearning  to  prolong  life  beyond  material  existence 
must  needs,  therefore,  be  considered  to  be  an 
instinct — to  call  it  by  no  higher  name — ineradica 
ble  from  our  nature. 

299 


ADDRESS 

Wherever  human  lips  have  moved  in  prayer 
whether  in  the  solitude  of  the  hermit's  cell  or  in 
the  multitudinous  concourse  which  intones  the 
swelling  anthem  under  the  groined  arches  of  stately 
cathedrals,  whether  to  voice  the  language  of  the 
affluent  ritual  of  civilized  man  or  to  chant  the  rude 
incantation  of  the  savage ;  and  wherever  human 
hands  have  erected  an  altar,  whether  of  simple 
boughs  beneath  the  canopy  of  heaven  or  of  marble 
and  gold  and  precious  stones  under  the  lofty  dome 
of  some  majestic  minster;  and  wherever  human 
eyes,  dimmed  with  the  tears  of  anguish,  have 
turned  in  appeal  to  a  hidden  power  for  assuagement 
in  sorrow  or  courage  in  despair,  —  there  proofs 
have  been  given  of  man's  longing  for  immortality. 
These  are  the  outward  evidences  of  the  religious 
feeling  inherent  in  the  human  heart  and  inseparable 
from  human  existence;  and  without  the  hope  of 
immortality  were  religion  a  delusion,  worship  a 
mockery,  and  prayer  as  vain  and  empty  as  sound 
ing  brass  and  tinkling  cymbal. 

Nor  may  reason  discard  this  hope  as  a  mere  fitful 
and  transitory  gleam  of  our  emotional  nature. 
Strive  as  he  may  to  weed  from  out  his  breast  all 
sentiment  or  emotion,  resolve  he  ever  so  firmly  to 
accept  as  truth  nothing  save  what  the  cold  precepts 
of  logic  demonstrate,  sear  his  heart  as  he  will  with 
the  drear  study  of  skeptical  metaphysicians,  still 
shall  not  man  quench  the  fire  of  this  inextinguish 
able  flame.  Bulwark  them  as  he  may,  the  time  will 

30° 


AT    ELKS'   MEMORIAL    SERVICE 

come  when  the  barriers  of  his  factitious  stoicism 
will  break  asunder,  and  pent-up  humanity  will 
resume  her  sway.  In  the  unshunnable  hour  of 
bereavement,  when  he  shall  stand  amid  the  wreck 
of  earthly  joys  lying  shattered  about  him,  the  star 
of  immortal  hope  alone  shall  remain  in  the  firma 
ment  to  guide  his  tottering  footsteps  through  the 
universal  gloom;  and,  with  blinding  tears  and 
stifling  sobs, — even  as  did  Ingersoll  over  his  broth 
er's  bier, — he  will  exclaim :  "  We  cry  aloud,  and  the 
only  answer  is  the  echo  of  our  wailing  cry.  From 
the  voiceless  lips  of  the  unreplying  dead  there 
comes  no  word ;  but  in  the  night  of  death  hope  sees 
a  star,  and  listening  love  can  hear  the  rustle  of  a 
wing/' 

I  have  read  in  the  biography  of  Guizot,  the  great 
French  historian,  statesman,  and  orator,  that,  at 
the  close  of  a  life  as  full  of  honors  as  of  good  deeds, 
when  he  felt  that  the  end  was  come  and  the  hand 
of  death  was  upon  him,  he  took  leave  of  his  daugh 
ter,  kneeling  by  his  bedside,  as  if  setting  out  upon 
a  journey  involving  but  a  temporary  separation, 
saying,  "Good-by,  my  daughter."  "Till  we  meet 
again,  father,"  the  child  replied.  And  the  dying 
man,  raising  himself  upon  his  pillow,  answered, 
"No  one  is  more  certain  of  our  meeting  than  I." 
And  so  he  passed  away. 

What  an  agony  of  despair  must  death  be  without 
this  hope  of  meeting  beyond  the  grave !  Truly  has 
a  distinguished  orator  of  our  own,  speaking  in  the 

301 


ADDRESS 

national  council-hall  over  the  ashes  of  a  brother 
Senator,  said,  "  If  immortality  is  a  splendid  but 
delusive  dream,  if  the  incompleteness  of  every 
career,  even  the  longest  and  most  fortunate,  be  not 
supplemented  and  perfected  after  its  termination 
here,  then  he  who  dreads  to  die  should  fear  to  live, 
for  life  is  a  tragedy  more  desolate  and  inexplicable 
than  death." 

I  know  not  how  better  to  voice  my  own  thoughts 
here  than  by  asking  your  forbearance  to  portray 
the  impressions  of  an  episode  within  my  own  per 
sonal  experience.  Rambling  one  Sunday  morning 
in  springtime  among  the  mountains  near  my  home, 
I  came,  at  an  abrupt  turn  of  an  unfrequented  path, 
upon  a  sight  which  for  a  moment  riveted  my  atten 
tion  and  arrested  my  footsteps.  Upon  the  slope 
of  a  gentle  declivity,  beneath  the  wide-spreading 
boughs  of  a  stately  oak,  a  woman,  clad  in  deep 
mourning,  knelt,  her  head  bowed  low  and  her  face 
buried  in  the  sod  of  a  new-made  mound.  The  sim 
ple  cross  and  the  half-withered  flowers  told  in  mute 
but  pathetic  eloquence  the  story  of  the  place.  The 
fear  of  intrusion  upon  a  spot  hallowed  by  death  and 
consecrated  to  sorrow  made  me  pause  and  noise 
lessly  retrace  my  steps.  But  the  emotions  which  the 
sight  had  awakened  accompanied  me  on  my  way. 
"  How  vain,"  thought  I,  "and  impotent  appear  all 
the  speculations  of  philosophy  in  the  presence  of 
such  a  scene  as  this  !  From  the  earliest  dawn  of 
human  intelligence  until  now,  sages  have  striven  to 

302 


AT    ELKS'   MEMORIAL   SERVICE 

unroll  the  scroll  where  the  secrets  of  existence  are 
written,  and  to  sound  the  depths  of  the  mystery  of 
creation.  With  eager  feet,  never  tiring,  each  pur 
suing  his  separate  path,  they  have  climbed  the  steep 
where  the  star  of  Science  shines  afar,  importuning 
the  heavens  above  and  the  earth  beneath  to  be 
informed  of  the  origin  of  the  world  and  told  the 
ultimate  destiny  of  man.  Their  anxious  question 
ings  have  died  upon  the  empty  air,  unanswered  and 
unechoed.  They  have  ever  returned  proclaiming 
that  the  oracle  was  dumb  and  the  mystery  unsolved. 
But  how  is  it  with  this  humble  mourner?  Her 
tremulous  lips  have  breathed  a  prayer  over  the 
ashes  of  the  dead.  From  the  depths  of  her  sor 
rowing  heart  she  has  spoken,  c  I  believe  in  God, 
the  Maker  of  heaven  and  earth;  I  believe  in 
the  immortality  of  the  soul  and  life  everlasting/ 
Before  the  eyes  of  her  faith  the  nature  of  the 
eternal  and  uncreated  First  Cause  and  the  mystery 
of  Creation  stand  revealed;  and  to  her  ears  the 
eager  doubt  of  the  Prophet  of  Israel,  c  If  a  man 
die  shall  he  live  again?'  has  been  answered  by  the 
words  of  the  Apostle  of  Galilee,  £As  in  Adam  all 
die,  even  so  in  Christ  shall  all  be  made  alive/  The 
God  of  her  faith  is  not  the  metaphysical  abstraction 
of  the  schools  of  philosophy.  He  is  the  Creator, 
of  infinite  power,  whose  hand  hung  the  stars  in  the 
firmament  and  made  man  in  the  likeness  of  His 
own  image.  He  is  the  Father,  of  infinite  goodness 
and  love,  whose  providence  guides  the  footsteps  of 

303 


ADDRESS 

His  children  upon  earth  and  receives  them  in  the 
regions  of  eternal  bliss  after  death.  The  soul's 
immortality  of  her  belief  is  no  vague  conception  of 
shadowy  existence.  It  is  the  continuance  of  indi 
vidual  life,  purified  from  the  grossness  of  the  flesh, 
perpetuating  in  heaven  the  associations,  the  joys, 
and  the  happiness  of  this  world.  Soothed  and 
comforted  by  the  consolation  which  this  faith 
affords,  she  will  rise  from  her  communion  with  the 
dead  to  resume  her  way  and  calmly  await  the  com 
ing  of  the  hour  when  both  shall  be  united  in  the  life 
to  come.  Deny  her  this  belief,  strip  her  of  this  faith, 
and  her  words  of  prayer  to  the  Omnipotent  would 
turn  into  a  wail  of  despair.  And  such  is  and  always 
has  been  the  condition  of  sorrowing  humanity. 
In  all  ages  and  in  all  climes,  unnumbered  souls 
have  found  in  this  heaven-given  promise  the  source 
of  strength  to  bear  the  toil,  the  suffering,  and  the 
injustice  of  this  world.  Skeptics  have  lived  and 
died  and  been  forgotten;  systems  of  metaphysics 
have  sprung  up  and  have  faded  away;  schools  of 
philosophy  have  flourished  and  have  decayed;  but 
man's  belief  in  immortality  stands  the  beacon  of 
eternal  hope,  undimmed  by  the  mists  of  doubt,  un 
shaken  by  the  ravages  of  time.  Now  and  hereafter, 
as  of  old,  sorrow  will  still  be  found  kneeling,  like 
this  humble  mourner,  by  the  side  of  the  tomb,  wait 
ing  to  hear  the  accents  of  that  voice  which  comes 
from  the  regions  where  death  has  never  trod,  say 
ing,  c  I  am  the  Resurrection  and  the  Life.  He  that 

304 


AT    ELKS'   MEMORIAL   SERVICE 

believeth  in  Me  though  he  be  dead,  yet  shall  he 
live;  and  whosoever  liveth  and  believeth  in  Me 
shall  never  die'/  " 


305 


ADDRESS  BEFORE  THE  SONS  OF  THE 
REVOLUTION 

THE  following  was  the  response  of  Mr.  Delmas  to  the  toast, 
"The  character  of  Washington  and  its  influence  upon  the  nation," 
made  at  a  banquet  of  the  Sons  of  the  Revolution,  in  San  Francisco, 
on  the  zzd  day  of  February,  1899. 

MR.  PRESIDENT:  If  a  student  of  the  firmament, 
whose  vigils  are  consecrated  "  to  trace  the  stars  and 
search  the  heavens  for  power,"  were  asked  to  describe 
in  an  after-dinner  speech  the  nature  and  composition 
of  the  sun,  and  to  depict  its  influence  upon  the  uni 
verse,  he  would  stand  appalled  at  the  immensity  of 
his  task  and  confounded  in  the  attempt  to  accomplish 
it.  No  less  embarrassment  do  I  feel  when,  in  obe 
dience  to  your  courteous  summons,  I  rise  on  this 
occasion  to  respond  to  the  sentiment  which  you 
have  just  proposed,  "  The  character  of  Washington 
and  its  influence  upon  the  nation." 

Where,  indeed,  could  a  theme  be  found  more 
vast  in  its  proportions  or  more  diversified  in  its 
attributes  to  be  compressed  within  such  narrow 
bounds  ?  A  century  has  rolled  by  since  Washing- 

306 


BEFORE   THE   SONS    OF   THE    REVOLUTION 

ton  was  laid  to  rest  beneath  the  sod  of  Mount  Ver- 
non.  And  yet  wherever  upon  the  face  of  the  globe 
the  emblem  under  which  he  fought  the  great  fight 
of  Independence  is  unfurled — in  every  city,  town 
village,  and  hamlet  within  the  confines  of  the  re 
public — upon  every  craft  flying  the  stars  and  stripes 
which  floats  upon  the  waters,  from  the  stately  and 
awe-inspiring  battle-ship  horrent  with  engines  of  de 
struction  to  the  humblest  fishing-smack  that  ploughs 
its  peaceful  way  under  the  shadow  of  the  lee-shore, 
—  nay,  in  remote  and  strange  lands,  whether  in  the 
frozen  regions  of  the  pole  or  under  the  burning  sun 
of  the  tropics,  wherever  a  heart  is  found  to  beat  in 
an  American  breast, — there,  on  this  day,  with  pub 
lic  pomp  or  private  ceremonial,  the  life  of  Wash 
ington  is  commemorated  for  now  the  one  hundredth 
time  since  a  nation,  still  clad  in  mourning  for  his 
death,  decreed  that  the  day  of  his  birth  should  be 
so  remembered  and  so  hallowed.  How,  then, 
shall  I  attempt  adequately  to  conceive  or  describe 
within  this  brief  limit  the  character,  the  achieve 
ments,  and  the  influence  of  that  man  whose  name 
is  thus  enshrined  in  the  hearts  of  his  countrymen, 
and  whose  spirit  holds  such  a  spell  over  the  minds 
of  successive  generations  ?  How  measure  the  worth 
of  that  life,  whose  fame,  defying  not  only  the  power 
of  time,  but  reversing  the  laws  of  terrestrial  things, 
grows  brighter  with  each  revolving  year,  and  keeps 
pace  with  the  march  of  civilization  wherever  its 
standard  is  advanced  over  the  inhabitable  globe  ? 

307 


ADDRESS 

But,  Mr.  President,  if  it  be  for  these  reasons  im 
possible  to  trace  the  influence  of  the  character  of 
Washington  upon  the  destinies  of  this  country  dur 
ing  the  century  that  has  just  elapsed  since  his  death, 
—  a  century  in  which  the  nation  has  gone  through 
such  varied  vicissitudes, —  we  may,  perhaps,  be 
empted  to  cast  a  glance  upon  events  which  imme 
diately  surround  us,  upon  those  changes  in  the 
history  of  our  country  which  have  been  and  still 
are  taking  place  under  our  very  eyes  with  such 
amazing  rapidity  and  completeness  of  transforma 
tion  that  they  appear  like  the  phantasms  of  a  dream 
or  the  shifting  panorama  of  the  scenic  stage.  What 
influence  do  the  character,  the  example,  the  precepts 
of  Washington  exert  to-day  upon  the  destiny  of  the 
nation  in  the  unprecedented  and  changed  condi 
tions  which  surround  it  ?  In  the  solution  of  the 
new  problems  which  the  arbitrament  of  a  brief  but 
decisive  war  thrusts  upon  us,  what  aid  is  sought 
from  the  recorded  utterances  of  that  tongue  which 
was  hushed  in  death  a  hundred  years  ago?  In 
the  heavings  of  the  ship  of  state,  tossed  upon  the 
waves  of  an  unknown  and  strange  sea,  what  guid 
ance  does  the  helmsman  invoke  from  the  chart 
traced  by  the  hand  of  Washington  before  the  cen 
tury  was  born  to  indicate  the  course  where  national 
safety  and  national  honor  lay  ? 

Mr.  President,  our  national  life  during  the  last 
ten  months  has  been  crowded  with  events  which 
a  century  ago  would  have  filled  a  decade  in  the 

308 


BEFORE   THE    SONS    OF   THE    REVOLUTION 

existence  of  even  the  most  advanced  nation.  Devel 
opments  have  been  so  rapid,  episodes  have  pressed 
upon  each  other  so  closely,  vicissitudes  have  pre 
sented  features  so  startling  and  unlooked  for,  that 
the  wisdom  of  the  representatives  of  the  people  has 
been  tasked  in  an  almost  superhuman  degree  to 
meet  the  varying  emergencies  as  became  the  dig 
nity  and  the  true  interests  of  a  great  nation.  From 
that  ill-starred  hour,  on  the  night  of  the  I5th  of 
February,  1898,  when  the  shattered  Maine  sank  in 
the  waters  of  Havana,  dragging  down  in  the  vortex 
and  burying  beneath  the  waves  the  decrepit  and 
expiring  form  of  one  of  the  oldest  monarchies  of 
Europe,  to  the  moment,  which  is  but  of  yesterday, 
when  the  Senate  ratified  the  treaty  by  which  Spain 
relaxed  her  feeble  grasp  upon  the  last  outlying  frag 
ments  of  the  vast  empire  of  Charles  V.,  and  we 
found  ourselves  of  a  sudden  burthened  with  the 
guardianship  of  ten  or  twelve  millions  of  men, 
strangers  to  our  race,  our  language,  our  customs, 
and  our  civilization,  whose  was  the  name  invoked 
in  our  council-halls,  whose  the  utterances  quoted, 
whose  the  example  cited,  whose  the  wisdom  and 
statesmanship  appealed  to  ?  The  student  of  politi 
cal  history,  turning  to  the  pages  which  record  the 
deliberations  of  the  lawmakers  of  the  nation,  wiL1 
answer,  The  name,  the  example,  the  precepts,  the 
wisdom  and  statesmanship  of  Washington.  When, 
in  the  beginning  of  the  struggle,  our  Chief  Magis 
trate  announced  to  the  world  that  the  war  was 

309 


ADDRESS 

undertaken  solely  to  vindicate  the  outraged  dignity 
of  the  nation,  and  proclaimed  that  the  idea  of  con 
quest  and  aggrandizement  was  to  be  repudiated  and 
reprobated  as  a  criminal  aggression  not  to  be  thought 
of,  whose  was  the  policy  thus  announced  ?  The 
policy  inculcated  by  Washington  in  that  immortal 
Address  in  which  he  exhorted  his  countrymen  to 
maintain  their  attitude  of  isolation  and  indepen 
dence  of  foreign  peoples.  When  the  news  of  suc 
cessive  victories — glorious  for  our  arms,  disastrous 
for  our  enemy's — flashed  before  our  eyes  ;  when  we 
saw  our  foe — its  armies  routed,  captured,  or  dis 
banded,  its  fleets  annihilated  —  lying  prostrate  and 
helpless  at  our  feet ;  when  opportunity  kindled  the 
hunger  for  foreign  acquisitions,  and  schemes  of  col 
onial  domains,  of  protectorates,  of  imperial  policies 
were  at  first  secretly  conceived,  then  voiced  in 
whispers,  and  at  length  openly  and  boldly  pro 
claimed,  by  what  words  did  the  wise  and  thoughtful 
seek  to  recall  our  wanderings,  and  warn  us  not  to 
abandon  the  advantages  of  our  singularly  fortunate 
position,  nor  to  entangle  our  peace  with  European 
ambitions  or  rivalries  ?  The  recorded  history  of 
the  hour  will  answer,  By  the  words  of  Wash 
ington.  And  now,  when,  in  the  delirious  joy  of 
our  triumph,  forgetful  of  the  concerns  clamor 
ing  for  attention  at  home,  we  talk  in  swelling 
phrase  about  our  duty  to  humanity  abroad ;  when 
we  imagine  ourselves  the  champions  of  Providence 
fraught  with  the  mission  of  emancipating  and  regen- 

310 


BEFORE   THE   SONS    OF   THE    REVOLUTION 

crating  mankind ;  when  we  allow  our  imagination  to 
be  dazzled  and  our  vanity  to  be  flattered  by  invitation 
to  an  alliance  with  a  monarchy,  kindred,  it  is  true, 
but,  for  that,  none  the  less  proverbially  egoistic  in 
its  policy,  what  voice  rings  clear  through  the  mists 
of  a  century  to  warn  us  that  "  it  is  folly  in  one 
nation  to  look  for  disinterested  favors  from  another ; 
that  it  is  an  illusion  which  experience  must  cure, 
which  a  just  pride  ought  to  discard  "  ?  What  voice, 
I  ask,  but  the  voice  of  Washington  ? 

Are  we  deaf  to  these  utterances  ?  Do  we  hear 
them  unmoved  ?  Has  the  power  which  has  been 
our  guide  for  a  hundred  years  now  ceased  to  have 
force  ?  Have  those  precepts  under  which  our  na 
tional  greatness  has  developed,  our  commerce  flour 
ished  and  the  happiness  of  the  people  been  secured, 
lost  their  efficacy?  Is  the  influence  of  the  exam 
ple  and  the  teachings  of  Washington  henceforth  to 
be  no  more  ?  Believe  it  not,  sir  ;  believe  it  not.  The 
day  will  come — it  never  yet  has  failed  to  come  to 
the  people  of  these  United  States  —  when  the  tem 
porary  illusions  of  the  hour  shall  be  dispelled  like 
the  mists  of  the  morning,  when  reason  shall  resume 
her  sway,  when  this  un-American  and  unrepublican 
talk  of  imperialism  —  this  nascent  proneness  to 
neglect  our  affairs  at  home  in  a  fantastic  attempt  to 
usurp  the  functions  of  the  Omnipotent  in  the  regu 
lation  of  the  world — shall  be  looked  upon  as  the 
fitful  and  momentary  aberrations  of  a  fevered  mind. 
The  day  will  come  when  we  shall  realize  that  our 

311 


ADDRESS 

true  interests  are  here  and  concern  our  own  people ; 
that  the  principles  by  which  we  conquered  and  stil 
maintain  our  independence  demand  that  we  allow 
other  nations  to  achieve  or  retain  theirs,  and  that,  if 
expansion  be  our  wish,  we  should  remember  that  we 
have  still  within  our  own  borders,  upon  soil  indis 
putably  ours,  room  enough  for  a  ten  times  greater 
number  of  freemen  —  children  of  the  temperate  zone 
— than  the  fevered  swamps  of  the  Antilles  or  the 
jungles  of  the  Malayan  archipelago  could  support. 
The  day  will  come  when,  with  the  accustomed  rev 
erence  of  old,  we  will  return  to  the  wisdom  and 
statesmanship  of  Washington,  and  in  the  future  as 
in  the  past  will  continue  to  rear  the  edifice  of  our 
national  greatness  upon  the  broad  and  safe  founda 
tions  which  he  has  laid. 

In  that  day,  and  until  the  waters  of  the  ocean 
shall  have  ingulfed  the  continent  and  this  loved 
land  of  ours  shall  be  no  more,  Author  of  our  inde 
pendence,  Founder  of  our  government,  primordial 
Magistrate  of  the  republic,  Father  and  Sage,  whose 
ashes  are  inurned  within  the  sepulcher  of  Mount 
Vernon,  but  whose  spirit  can  never  die,  be  with  us 
yet  and  evermore. 


312 


A   POLITICAL   BOSS 

FROM  Mr.  Delmas's  address  to  the  jury  in  the  case  of  J.  P. 
Jarman  vs.  James  W.  Rea,  before  the  Superior  Court  of  Santa 
Clara  County,  on  October  22,  1898. 

GENTLEMEN,  I  cannot  but  express  my  astonish 
ment  at  the  colossal  proportions  which,  in  the  eyes 
of  his  admirers,  this  defendant  would  seem  to  have 
attained.  According  to  his  counsel,  he  is  a  person 
of  strong  individuality,  and  wonderful  magnetism  as 
well ;  one  destined  to  be  not  only  a  benefactor  of 
his  race,  but  also  a  leader  among  the  leaders  of  men. 

These  sentiments  have  been  voiced  in  your  hear 
ing,  in  a  tone  whose  evident  sincerity  robs  them 
of  all  suspicion  of  irony  or  sarcasm.  Upon  the 
amenities  of  personal  friendship  or  the  ties  and 
obligations  of  political  association  which  may  have 
prompted  these  utterances  it  would  ill  become  me 
on  this  occasion  to  speak.  But  when  I  see  this 
individual  held  up  as  a  model,  whose  example  the 
youth  of  this  community  are  exhorted  to  imitate; 
when  I  see  him  depicted  as  a  man  whom  the  State 
should  be  proud  to  honor;  when  I  see  him  com- 

313 
u 


DESCRIPTION 

pared  with  Washington  and  Lincoln,  and  in  words 
of  audacious,  if  not  blasphemous,  irreverence  with 
Christ  himself,  I  should  scant  my  rights  as  a  citi 
zen  and  do  violence  to  my  duty  as  an  advocate 
were  I  to  remain  silent. 

It  is  not — no,  it  is  not  in  these  exalted  charac 
ters  that  the  prototype  of  the  political  boss  of 
to-day,  be  he  of  New  York  or  of  Chicago,  come 
he  from  San  Francisco  or  from  San  Jose,  is  to  be 
sought.  It  is  found,  rather,  in  a  personage  who, 
after  figuring  for  a  brief  space  upon  the  public 
stage,  died  some  thirty  years  ago  bequeathing  to 
posterity  a  record  of  infamy  under  the  name  of 
"  Boss  "  Tweed. 

Washington  spent  the  years  of  his  early  as  of 
his  ripe  manhood  conquering  upon  the  battle-field 
the  independence  of  his  country.  With  returning 
peace,  he  consecrated  his  maturer  days  to  the  task 
of  laying  broad  and  deep  those  foundations  upon 
which  has  been  erected  the  government  of  a  people 
whose  expanded  sway,  spurning  now  the  watery 
limitation  of  either  ocean,  extends  its  imperial 
bounds  until  they  embrace  the  Antilles  in  the  East, 
while  in  the  region  of  the  setting  sun  they  rest 
upon  the  islands  of  the  Malayan  archipelago.  To 
Lincoln  Providence  intrusted  the  duty  of  striking 
off  the  shackles  from  the  hands  of  four  millions  of 
bondmen,  of  extinguishing  the  fires  of  a  desolat 
ing  fratricidal  war,  of  rewelding  the  sundered  bonds 
of  sister  States,  of  restoring  that  united  republic 


OF   A    POLITICAL   BOSS 

of  sovereigns  which,  standing  to-day  in  all  its  pris 
tine  strength  and  more  than  its  pristine  grandeur, 
is  the  pattern  of  all  present  and  future  govern 
ments  of  freemen.  The  son  of  Mary — the  last 
scion  of  the  royal  house  of  David,  the  Prince  of 
Peace,  whose  coming  had  been  announced  by  the 
seers  of  Israel,  and  foretold  by  prophets  who  in 
the  infancy  of  the  world  had  held  communion  with 
the  Highest  and  gazed  with  unseared  vision  upon 
the  face  of  the  great  Jehovah — even  He,  Messiah, 
came  into  the  world  to  preach  the  gospel  of  peace 
and  good  will,  to  unite  mankind  in  one  universal 
brotherhood  of  charity  and  of  love,  to  alleviate  the 
sufferings  of  all  who  labor  and  are  heavy  laden,  to 
raise  up  the  bent  form  of  sorrow,  and  bid  its  tear- 
dimmed  eyes  look  up  above  in  the  consolatory 
hope  of  a  life  hereafter.  Tweed  employed  his  days 
in  organizing  a  band  of  thieves,  whose  mission  was 
to  rob  the  treasury  of  a  State,  to  debauch  her  legis 
lators  and  corrupt  her  judges,  to  prostitute  the 
manhood  of  her  sons,  and  make  her  name  a  hissing 
and  a  byword  among  the  nations  of  the  earth. 

You  have  heard  it  said  here  that  the  names  of 
Washington,  of  Lincoln,  and  of  Jesus  of  Nazareth 
are  inscribed  upon  the  Book  of  Life  in  letters  whose 
splendor  dims  the  luster  of  the  evening  star.  The 
name  of  Tweed,  written  side  by  side  with  that  of 
ruffians  and  malefactors,  is  catalogued  in  a  turnkey's 
nand  upon  the  prison  register  of  the  Ludlow  Street 
jail. 

315 


DESCRIPTION    OF   A    POLITICAL   BOSS 

Washington  closed  his  eyes  in  peace  under  tne 
roof-tree  of  his  noble  mansion;  and  in  all  seasons 
of  the  changing  year,  and  from  every  region  of  the 
world,  come  pilgrims  to  do  homage  to  his  enshrined 
ashes,  while  his  never-ceasing  requiem  is  sounded 
from  the  deck  of  every  craft  that  floats  beneath  the 
shadow  of  Mount  Vernon.  Lincoln's  death  was  a 
martyrdom  to  duty;  and  as  the  tidings  that  he  was 
no  more  spread  through  the  land,  the  great  heart 
of  the  nation  ceased  a  while  to  beat,  the  winds 
seemed  for  a  season  to  stand  still,  and  the  tempest's 
breath  to  be  hushed,  amid  the  wailing  and  lamenta 
tion  of  mourning  humanity.  Christ  died  upon 
Calvary;  and  when  his  hour  had  come,  darkness 
overspread  the  face  of  nature,  the  rocks  were  rent, 
and  the  earth  shook,  as  if  the  universe,  expiring 
with  its  God,  had  blent  its  soul  with  his  in  its  return 
to  the  source  of  eternal  life.  Tweed  perished  in  a 
dungeon,  amid  the  curses  of  a  State  which  he  had 
plundered,  of  a  nation  which  he  had  disgraced,  of 
mankind  which  he  had  dishonored. 

Let  him  who  walks  in  his  footsteps  take  warning 
from  his  fate. 


316 


ADDRESS    BEFORE    THE    CHIT-CHAT 

CLUB 

ANSWER  to  the  toast  "What  has  law  done  for  civilization?  "  at 
the  annual  dinner  of  the  Chit-Chat  Club,  held  in  San  Francisco  on 
November  9,  1896. 

MR.  PRESIDENT:  The  sentiment  to  which  I  am 
called  upon  to  respond — the  effect  of  law  upon 
civilization  —  assumes,  at  a  glance,  such  vast  pro 
portions  that  it  seems  difficult  to  attempt  to  give 
even  so  much  as  a  general  outline  of  the  thoughts 
which  its  mention  evokes.  To  describe  the  gradual 
but  ceaseless  and  resistless  evolution  of  the  human 
race  from  the  condition  of  rudeness  in  which  history 
and  ethnology  teach  it  was  found,  not  so  very  many 
centuries  ago ;  to  descry  the  first  faint  glimmer  of 
the  light  of  arts,  sciences,  and  philosophy  upon  the 
remote  inhabitants  of  India;  to  discern  its  gradual 
expansion  beyond  the  confines  of  the  empire  watered 
by  the  Indus  and  the  Ganges  ;  to  trace  its  dawn  upon 
the  Grecian  archipelago,  and  watch  it  lingering  long 
and  lovingly  upon  .the  shores  of  the  Piraeus,  vivifying 
the  arts,  the  literature,  and  the  philosophy  which  for 

317 


ADDRESS 

over  twenty  centuries  have  left  their  impress  upon 
all  succeeding  Western  civilizations ;  to  see  it  grad 
ually  tingeing  with  its  rays  the  crest  of  the  seven 
hills  of  the  city  of  Romulus,  transforming  them  by 
degrees  into  the  abode  of  all  that  was  exalted  in 
the  realm  of  human  achievements ;  to  gaze  upon 
its  refraction  from  the  imperial  metropolis  of  the 
Caesars  along  the  Mediterranean,  till  on  the  one  shore 
it  illumined  its  margin  from  the  Delta  of  the  Nile 
to  the  Pillars  of  Hercules,  and  on  the  other  dazzled 
with  its  splendor  the  barbaric  inhabitants  of  Gaul, 
of  Spain,  and,  at  last,  of  Britain ;  to  behold  it  sta 
tionary  for  a  thousand  years,  its  westward  course 
arrested,  and  then  accompanying  the  daring  caravels 
of  the  Genoese  navigator,  shining  upon  their  path 
across  the  affronted  perils  of  unexplored  seas,  and 
kindling  at  last  the  altar-fires  of  a  new  race  of  men 
upon  a  newly  discovered  continent ;  to  view  it  flam 
ing  across  the  Atlantic  sky,  undimmed  amid  the 
storms  of  New  England  winters  or  the  tropical 
luxuriance  of  the  Southern  coast ;  to  notice  it  thence 
gradually  diffusing  its  radiance  over  the  tops  of  the 
Alleghanies,  the  banks  of  the  Ohio,  the  waters  of  the 
Mississippi,  the  boundless  prairies,  the  heights  of  the 
Rocky  Mountains,  the  sands  of  the  desert,  the  sum 
mits  of  the  Sierra,  until  it  tinged  the  waves  of  the 
Pacific;  and  then — to  us  Californians  a  spectacle 
and  a  transformation  full  of  deepest  interest  and  most 
touching  insruction — to  contemplate  the  mountains, 
the  hills,  and  the  valleys  of  our  own  beloved  State, 

318 


BEFORE   THE    CHIT-CHAT    CLUB 

changed  within  our  memory,  under  the  power  of 
its  benign  influence,  from  the  habitat  of  rude  sav 
ages  into  the  homes  of  a  new  order  of  beings,  who, 
in  the  advancement  of  arts,  literature,  and  science, 
in  the  development  of  the  resources  and  the  natural 
advantages  which  are  the  basis  as  well  of  indi 
vidual  happiness  as  of  national  prosperity,  have  in 
less  than  a  half-century  reached  a  point  where  they 
may  well  challenge  the  admiration  and  excite  the 
generous  emulation  of  the  most  favored  of  the  sons 
of  men  in  the  most  favored  climes ; — to  do  this,  I 
say,  to  undertake  this  task,  and  then  to  attempt  to 
measure  and  define  the  influence  which  law  has  had 
upon  this  ever-expanding  light  of  civilization, — how 
it  has  removed  the  obstacles  in  its  path,  and  made 
secure  its  gradual  conquest  over  the  empire  of  dark 
ness, —  were  a  task  vast  as  the  history  of  the  human 
race,  commensurate  with  the  achievements  of  the 
human  mind,  limitless  as  the  aspirations  of  the 
human  heart. 

But,  Mr.  President,  if  the  general  scope  of  the 
subject  is  too  vast,  perhaps  one  example  may  serve 
at  least  to  illustrate  it.  Asked  what  has  been  the 
influence  of  law  upon  civilization,  I  might  answer : 
Look  around  you.  Recall  and  reflect  upon  what 
has  taken  place  within  the  last  few  days  under  your 
own  eyes,  here  where  Western  civilization  has  taken 
its  last  stand.  One  week  ago  this  very  night,  we 
presented  the  spectacle  of  a  nation  of  seventy  mil 
lions  of  people  divided  into  two  hostile  camps,  each 

319 


ADDRESS 

led  by  its  own  supreme  commander,  each  composed 
of  nearly  one  half  the  population,  each  filling  its  ranks 
with  members  eager,  intent  upon  victory.  For  over 
three  months  a  struggle  for  rule  and  supremacy, 
protracted  and  intense,  had  been  waged,  and  the 
contest  had  then  reached  its  highest  point  of  fierce 
culmination.  The  principles  contended  for  by  both 
parties  seemed  in  direct  antagonism  each  to  the  other. 
From  the  lips  of  a  thousand  orators  and  in  the 
columns  of  a  thousand  papers  were  daily  issuing 
denunciations  of  opponents,  predictions  of  dire  ca 
lamities  to  follow  the  defeat  of  a  favored  champion, 
and  auguries  of  unexampled  blessings  and  prosper 
ity  to  wait  upon  his  success.  Processions  of  sincere 
and  earnest  men  marched  in  serried  ranks  through 
the  streets  of  crowded  cities,  bearing  aloft  banners 
with  mottoes  typifying  their  own  faith  or  deriding 
the  tenets  of  their  antagonists.  Ensigns  were  defi 
antly  flung  to  the  breeze ;  and  the  emblem  that 
floats  equally  over  the  arts  of  peace  and  the  smoke 
of  battle,  the  revered  symbol  of  the  nation,  was 
borne  aloft  by  both  the  contending  hosts  as  a  chal 
lenge  to  the  world  that  it  alone  was  worthy  to  be 
the  protector  of  the  nation's  honor  and  the  defend 
er  of  the  nation's  interests. 

The  excitement  which  ever  attends  the  confronta 
tion  of  large  bodies  of  men  actuated  by  different 
aims,  seeking  different  objects,  and  contending  upon 
different  lines  for  mastery,  had  reached  the  zenith, 
and  seemed  to  threaten  resort  to  the  supreme 

320 


BEFORE   THE    CHIT-CHAT    CLUB 

though  dread  arbiter  of  human  contentions  —  Force. 
The  next  day  had  been  designated  as  the  day  of 
battle.  And  what  happened  then  ?  The  adult 
population  of  this  nation,  throughout  the  vast  ex 
panse  of  its  imperial  domain,  marched  to  the  scene 
of  conflict.  The  institutions  of  the  country  and 
the  time-honored  traditions  of  the  age  had  decreed 
that  the  contest  should  be  one  of  mind,  and  not 
of  matter, —  of  principles,  and  not  of  arms, —  of 
peace,  and  not  of  war.  And  peacefully  did  it  take 
place.  Even  there  where  the  antagonism  was  most 
strenuous  not  an  incident  occurred  to  dim  the  splen 
dor  or  mar  the  perfection  of  the  spectacle.  The 
sun  went  down;  but  not  over  a  field  of  carnage. 
Its  expiring  beams  were  not  reflected  by  the  grimed 
visage  of  the  victor,  flushed  with  savage  exultation; 
nor  did  they  fall  upon  the  lifeless  face  of  a  defeated 
foe.  Instead  a  great  people  sat  in  calm  majesty  to 
determine  the  result  of  a  victory  of  peace.  By  the 
light  of  bonfires,  under  the  glare  of  electricity, 
through  the  livelong  night,  throngs  crowded  the 
streets  of  great  cities,  surging  to  and  fro  like  the 
waves  of  a  mighty  ocean  in  their  eagerness  to  catch 
the  indications  of  triumph  or  defeat. 

And  in  all  this  there  was  no  commotion,  no  con 
tention,  no  violence.  Before  another  sun  had  risen 
the  decision  had  been  announced ;  each  party  knew 
the  decree  that  fate  had  had  in  store  as  the  culmination 
of  its  aspirations  or  death-knell  of  its  hopes.  And 
when  that  sun  rose  next  morn,  it  looked  down  upon 

321 


ADDRESS 


the  nation's  millions  peacefully  resuming  their  daily 
toil,  industrious,  contented,  and  cheerful, —  mutual 
expressions  of  good  wishes  interchanged  between 
the  victorious  and  the  defeated  champions,  couched 
in  terms  of  most  perfect  courtesy  and  unaffected 
patriotism, — the  banners  taken  from  their  staves, 
and  all  trace  of  contest  swept  away.  One  might 
have  thought  a  pebble  had  been  dropped  into  the 
smooth  waters  of  a  lake, —  a  splash,  a  ripple,  and  in 
a  moment  all  again  was  still. 

Therefore  is  it,  Mr.  President,  that  if  asked  what 
influence  law  has  had  upon  civilization,  I  would  be 
tempted  to  say  :  What  but  law — law  wisely  framed 
and  wisely  administered  —  has  made  so  sublime  a 
spectacle  a  possibility  ?  Who  but  a  people  in  whom 
obedience  and  submission  to  law  is  not  so  much  the 
result  of  reasoning  and  reflection  as  an  impulse  of 
the  heart  and  an  instinct  of  the  mind  could  exhibit 
such  moderation  in  victory,  such  acquiescence  in 
defeat  ? 


322 


ADDRESS   ON    INDEPENDENCE    DAY 

DELIVERED  at  Mountain  View — Mr.  Delmas's  home  in  Santa 
Clara  County  —  on  the  4th  of  July,  1893. 

MR.  PRESIDENT,  LADIES  AND  GENTLEMEN:  At 
the  time  the  Declaration  of  Independence  was 
written  what  was  California?  What  knowledge  of 
it  had  the  founders  of  our  Government?  A  frag 
ment  of  the  vast  empire  which  the  daring  genius 
of  Spanish  navigators  had  brought  under  the  sway 
of  the  degenerate  descendants  of  Charles  V.,  it  lay 
an  unexplored  region  peopled  by  the  imagination 
of  poets  and  romancers  with  strange  and  fantastic 
beings.  When  Jefferson  wrote  and  Adams  pro 
claimed  the  principles  of  liberty  and  independence 
but  five  years  had  elapsed  since  the  day  that  Juni- 
pero  Serra  had  landed  at  Monterey,  bearing  in  his 
hand  the  first  spark  of  civilization  that  had  cast  its 
light  upon  these  Western  shores.  Soon  after,  the 
proselyting  spirit  of  Franciscan  monks  founded 
religious  establishments  in  various  parts  of  the 
State.  From  San  Diego  to  Sonoma  the  country 
was  dotted  over  at  long  intervals  with  churches  and 

323 


ADDRESS 

missions,  where  the  savage  inhabitant  was  gradually 
reclaimed  from  barbarism  and  instructed  in  the 
mysteries  of  a  higher  faith.  But  the  influence  of 
these  institutions  extended  little  beyond  the  walls 
or  immediate  confines  of  the  mission  ;  and  of  civili 
zation,  as  the  term  was  understood  by  the  race  that 
had  settled  upon  the  Atlantic  shore,  there  was 
none. 

In  the  course  of  time,  and  in  the  first  quarter 
of  the  century,  Spanish  rule  was  followed  here  by 
Mexican  domination.  The  new  masters,  however, 
failed  in  turn  to  develop  the  resources  which  nature 
had  lavished  upon  California.  No  progress  what 
ever  was  made  in  agriculture.  The  soil  was  left 
virgin,  its  inexhaustible  fertility  untouched.  Sea 
ports  whose  safety  and  capacity  challenge  the  admi 
ration  of  the  world  lay  unruffled  by  the  prow  of 
the  merchantman.  The  beauty  of  scenery  and  of 
clime  remained  a  sealed  book  to  the  world.  And, 
save  by  the  owners  of  a  few  scattered  ranches,  the 
country  was  still  uninhabited. 

But  in  the  middle  of  the  century  a  new  race  of 
men  came  pouring  in  through  the  Golden  Gate, 
streaming  along  the  prairies,  clambering  over  the 
steeps  of  the  Rocky  Mountains  and  the  summits 
of  the  Sierra,  bringing  with  them  the  ideas  and  the 
principles  formulated  in  the  Declaration  of  Inde 
pendence  and  promulgated  in  the  Constitution  of 
the  original  Thirteen  States.  And,  behold,  a  new 
era  unfolding,  as  if  under  the  enchanter's  wand ! 

324 


ON   INDEPENDENCE   DAY 

Compare  the  California  of  to-day  with  the  Cali 
fornia  of  the  day  when  the  first  venturous  Argonaut 
came  in  sight  of  this  promised  land,  and  trace 
the  marvelous  change  wrought  by  the  influence 
of  American  civilization.  As  an  illustration,  look 
around  you  upon  this  our  own  Valley  of  Santa 
Clara.  Consider  what  it  was  then  and  is  now. 
Could  the  venerable  patriarch  who  crossed  the 
plains  fifty  years  ago,  and  by  the  courtesy  of  whose 
grandchildren  and  great-grandchildren  we  are  per 
mitted  to  hold  these  exercises  under  the  shade  of 
these  ancestral  oaks,  rise  from  his  grave,  his  eyes 
would  rest  upon  a  spectacle  transcending  far  the 
visions  of  his  utmost  hope.  Here,  where  he  found 
the  Indian  roaming  over  the  valley,  untouched  by 
the  beauty  and  unconscious  of  the  wealth  which 
surrounded  him,  he  would  behold  the  population 
which  has  superseded  him,  and  see  what  industry, 
orderly  government,  the  broad  spirit  and  the  high 
aspirations  of  American  civilization  have  accom 
plished. 

I  speak  to  friends  and  neighbors,  among  whom 
there  is  none  who  does  not  cherish  above  all  others 
the  spot  which  prodigal  nature  has  destined  for  our 
homes.  For  my  own  part, — if  you  will  permit  the 
indulgence  of  a  personal  sentiment, — I  never  return, 
even  after  the  briefest  absence,  within  the  limits  of 
our  valley  without  feeling  my  heart  expand  within 
me.  To  my  eyes  she  ever  appears  clad  in  garments 
of  beauty.  In  all  seasons  of  the  year — whether 

325 


ADDRESS 

when  spring  covers  her  with  a  mantle  of  verdure 
and  decks  the  slopes  of  her  hillsides  with  flowers, 
or  when  the  rays  of  the  summer  sun  embrown  her 
mountains  and  tinge  her  wheat-fields  with  their  own 
golden  hue,  or  when  autumn's  prodigal  hand  strews 
the  earth  with  the  ripened  fruit  of  her  orchards,  or 
when  the  reviving  rains  of  winter  come  sweeping 
over  the  summit  of  yon  Blue  Ridge  to  refresh  and 
fertilize  the  soil — she  ever  presents  an  aspect  of 
matchless  beauty.  I  speak  in  no  spirit  of  poetical 
exaggeration,  but  with  a  conviction  bred  by  years 
of  observation,  when  I  say  that  there  is  not  on  the 
face  of  the  globe  a  spot  more  highly  blessed  with 
all  that  contributes  to  the  prosperity  and  happiness 
of  mankind  than  the  one  in  which  we  are  priv 
ileged  to  live.  I  have  seen  the  green  meadows, 
the  manorial  parks,  and  the  baronial  halls  of  Eng 
land,  have  walked  in  the  busy  streets  of  her  vast 
cities  and  heard  the  ceaseless  din  of  her  manu 
facturing  centers;  I  have  basked  upon  the  sunny 
slopes  of  the  vineyards  of  France,  have  traversed 
her  valleys,  where  every  rood  blossoms  like  a  gar 
den,  and  have  mingled  with  the  joyous  population 
of  her  glorious  capital;  I  have  wandered  amid  the 
groves  of  Italy,  where  the  purple  olive  glistens  in 
the  sun  and  the  fragrance  of  the  citron  and  the 
orange  perfume  the  air,  have  trodden  the  mosaic 
pavements  of  her  galleries,  and  beheld  those  treas 
ures  of  her  artistic  genius  which  challenge  the 
admiration  and  despair  of  successive  generations ;  I 

326 


ON   INDEPENDENCE   DAY 

have  gazed  upon  Switzerland's  sublime  panorama 
of  lake  and  mountain;  I  have  floated  upon  the 
Rhine's  swift  current  as  it  flowed  beneath  the 
shadow  of  historical  castles  and  mediaeval  ruins, — 
and,  returning  from  all  these,  my  eyes  have  filled 
with  tears  of  gratitude  and  joy  when,  with  the  dawn 
of  a  summer  morning,  they  rested  once  more  upon 
the  oaks  and  the  wheat-fields,  the  orchards,  the 
vineyards,  the  hills,  and  the  mountains  of  Santa 
Clara. 

We  may  confidently  challenge  England  or  France 
or  Italy  or  Switzerland  or  Germany  to  point  within 
their  borders  to  a  spot  where  the  elements  which 
make  up  the  highest  reach  of  civilization  are  com 
bined  in  as  ample  and  abundant  a  measure  as  they 
are  here;  where  human  liberty  is  subject  to  fewer 
.restrictions;  where  the  average  standard  of  intel 
ligence  is  as  high,  or  education  equally  diffused; 
where  the  fruits  of  human  labor  are  as  fully  secured 
to  their  producer;  where  civil  government  is  admin 
istered  with  equal  beneficence  of  results;  where 
there  is  less  of  human  suffering,  misery,  or  poverty; 
where,  in  fine,  there  is  an  equal  enjoyment  of  all 
the  blessings  which  can  confer  happiness  this  side 
of  the  grave. 

We  bow  our  heads  in  grateful  reverence  before 
the  spirit  of  those  great  and  illustrious  men  who 
this  day  one  hundred  and  seventeen  years  ago  did 
by  their  devotion  and  their  labors  make  possible 
the  enjoyment  of  the  gifts  which  we  in  so  supreme 

327 


ADDRESS 

a  degree  enjoy.  Their  memory  is  enshrined  in  our 
hearts.  The  achievements  of  their  wisdom  are  in 
scribed  upon  the  pages  of  history,  and  there,  high 
above  the  titles  of  heroes  and  conquerors  or  fabled 
demigods,  the  names  of  the  founders  of  this  Gov 
ernment —  of  Jefferson  and  Franklin  and  Adams 
and  Washington  and  Hancock  and  their  compeers 
— will  continue  to  shed  their  luster  until  the  human 
race  shall  have  faded  from  the  earth  and  time  shall 
be  no  more. 


328 


WALTER   SCOTT 

THIS  address  was  delivered  before  the  St.  Andrew's  Society,  at 
their  hall  in  San  Francisco,  on  the  occasion  of  the  celebration  of 
the  birth  of  Sir  Walter  Scott,  on  the  I5th  day  of  August,  1892. 

MR.  CHAIRMAN,  LADIES  AND  GENTLEMEN  :  In 
my  youth  it  was  my  privilege  to  witness,  in  one  of 
the  oldest  of  our  American  universities,  a  ceremony 
the  memory  of  which  is  now  forcibly  recalled  to  my 
mind.  In  conformity  with  a  time-honored  custom, 
the  members  of  the  graduating  class  came  together 
on  the  last  day  of  the  academic  term  to  bid  farewell 
to  each  other  and  to  the  scenes  amid  which  during 
the  four  preceding  years  they  had  pursued  their 
studies.  They  met  on  the  green  in  front  of  the 
college  buildings,  there,  under  the  shade  of  the 
secular  elms  which  had  witnessed  the  going  and 
coming  of  successive  generations  of  students,  to 
cast  a  last  retrospect  over  the  past  and  to  prepare 
for  the  solemn  moment  of  parting.  The  class  his 
torian  rehearsed  the  events  of  the  academic  course, 
recalling  its  toils  and  its  triumphs,  its  sorrows  and 
its  joys,  its  days  of  gloom  and  its  periods  of  sun- 

329 


ADDRESS 

shine.  The  student  songs,  with  their  alternating 
pathos  and  mirth,  their  solemn  warnings  or  glowing 
sentiments  of  exuberant  life,  were  sung  once  again. 
The  college  pipe  was  lit  for  the  last  time,  and  then 
broken,  as  a  symbol  of  the  end  of  youth  and  its 
lightsome  pleasure,  and  of  the  beginning  of  man 
hood  and  its  stern  duties  and  unshunnable  struggles. 
Then  a  broad  circle  was  formed,  and  each  bade  fare 
well  to  his  fellows,  grasping  the  hands  of  those  whom 
years  of  association  and  mutual  pursuits  had  endeared, 
and  whom,  perchance,  he  might  never  meet  again. 
And  when  the  last  cloud  of  smoke  had  floated  away, 
the  last  note  of  melody  had  died  upon  the  air,  the 
last  accents  of  farewell  had  been  uttered,  they  pro 
ceeded  in  solemn  procession  to  the  library,  and  there, 
in  order  to  commemorate  their  career  as  students  and 
hand  down  to  future  generations  a  visible  token  of 
their  devotion  to  Alma  Mater,  they  planted — in 
voking  the  propitious  favor  of  Providence  upon  the 
act  —  in  an  angle  of  one  of  the  buttresses  of  the  old 
Gothic  edifice  a  scion  of  ivy.  The  class  then  sepa 
rated,  to  meet  as  a  class  no  more. 

What,  it  may  be  asked,  is  there  in  common  be 
tween  this  students'  custom  and  the  present  celebra 
tion  ?  This,  perhaps  :  It  had  been  the  endeavor  of 
each  successive  class  of  this  ancient  university,  in 
order  to  add  to  the  impressiveness  of  the  ceremony, 
to  procure  for  these  occasions  a  plant  of  ivy  from 
some  place  made  famous  in  history  or  in  song,  from 
the  crumbling  stones  of  some  renowned  ruin,  the  walls 

330 


BEFORE   THE   ST.  ANDREW'S    SOCIETY 

of  some  hallowed  shrine,  the  battlements  of  some 
war-beaten  fortress.  And  the  ivy  planted  on  this  day 
had  been  brought  by  loving  hands  from  Abbotsford. 

And  there  even  now,  clinging  and  spreading  over 
the  walls  of  that  ancient  library,  grows  the  plant 
whose  parent  vine  is  still  green  upon  the  banks  of 
the  Tweed,  perpetuating  at  once  the  memory  of  the 
class  which  planted  it  and  that  of  Scotland's  most 
illustrious  son.  But  the  fame  of  him  whose  name 
was  thus  linked  with  this  act  shall  outlive  the  work 
done  on  that  day.  Long  after  the  last  vestige 
of  these  students'  labors  shall  have  been  effaced, 
after  the  last  leaf  of  that  ivy  shall  have  faded,  and 
the  very  walls  which  it  embraces  shall  have  crum 
bled  into  dust,  generations  of  Scotchmen  in  all 
regions  of  the  earth  where  the  tongue  of  Britain  is 
spoken  shall  meet  as  you  are  met  to-night,  to  com 
memorate  the  birth  of  Walter  Scott. 

There  is  something  as  unique  as  it  is  affecting  in 
this  meeting  to  do  honor  to  the  illustrious  dead. 
What  writer  has  ever  in  the  tide  of  time  received 
the  homage  of  affection  which  is  being  paid  to-day, 
not  only  here,  but  wherever  the  adventurous  feet 
of  Scotland's  sons  have  wandered  ?  What  poet  has 
left  so  deep  an  impress  upon  the  minds  and  hearts 
of  his  countrymen,  that  they  have  met  for  succes 
sive  generations  to  rejoice  in  his  birth  and  bless  his 
memory?  The  Greeks  held  their  great  bards  in 
honored  reverence.  But  not  to  Homer,  nor  Pin 
dar,  nor  Sophocles  was  the  tribute  paid  which  is 

331 


ADDRESS 

being  paid  here  to-night.  The  French  have  erected 
monuments  to  Corneille,  to  Voltaire,  to  Hugo.  The 
Italians  have  inurned  the  consecrated  ashes  of  Dante 
in  the  splendid  mausoleum  of  Santa  Croce,  and  the 
unwearied  feet  of  pilgrims  still  press  the  tomb  of 
Petrarch  in  Arqua.  Statues  of  Goethe  and  Schil 
ler  adorn  the  public  places  of  Germany.  But  when 
have  Frenchmen  or  Italians  or  Germans  ever  culled 
out  a  holiday  and  dedicated  it  to  the  memory  of  these 
illustrious  men  ?  Great  as  is  the  name  of  our  own 
Shakespeare,  and  exalted  the  fame  of  Milton  and  of 
Byron,  universal  as  is  the  admiration  of  their  genius, 
and  constant  the  delight  imparted  by  their  creations, 
the  day  of  their  birth  was  never  yet  observed  by 
their  countrymen  as  a  day  of  rejoicing. 

What  is  there,  then,  in  Walter  Scott  that  dis 
tinguishes  him  from  these  other  great  masters  of 
romance  and  of  song,  and  makes  his  the  singular 
felicity  of  these  marks  of  reverence  and  affection  ? 
The  answer  is,  I  think,  to  be  sought  not  only  in 
his  works,  but  in  his  life  ;  not  only  in  the  produc 
tions  of  the  writer  and  poet,  but  in  the  character  of 
the  man.  Scotland  is  but  paying  back  his  own 
boundless  affection.  No  son  of  hers  was  ever  more 
passionately,  blindly  devoted  to  her  than  was  he. 
He  loved  her  with  the  unquestioning  love  of  the 
child  whose  partial  eyes  see  naught  but  beauty  and 
perfection  in  the  parent  that  gave  him  life.  Sixty 
years  have  passed  since,  weary  and  broken  with  age 
and  sorrow,  he  was  laid  upon  her  breast  and 

332 


BEFORE   THE   ST.  ANDREW'S   SOCIETY 

folded  in  her  last  embrace.  But  she  still  mourns 
over  his  loss,  and,  mourning,  repays  the  great  love 
he  bore  her. 

The  productions  of  Scott's  genius  were  all,  in  a 
greater  or  less  degree,  linked  with  Scotland.  It  is 
no  marvel ;  for  no  country,  no  people,  no  history 
could  have  afforded  to  a  mind  such  as  his  vaster 
or  more  attractive  materials,  and  no  fancy  was  better 
fitted  to  illumine  the  theme.  From  earliest  infancy, 
his  soul  had  been  rilled  with  images  of  the  romantic 
and  poetic  features  of  his  country  and  her  people, 
and  the  observations  and  studies  of  his  maturer  years 
had  but  deepened  the  impressions  then  received.  On 
his  nurse's  knees  he  had  listened  to  strange  stories, 
traditions,  legends  of  feudal  lords  and  high-born 
ladies,  of  heroic  devotion  to  fallen  and  dethroned 
princes,  of  rescues  and  hairbreadth  escapes,  of  bat 
tles  fought  between  lowlands  and  highlands,  of 
border  raids  and  forays,  of  minstrels  stringing  their 
harps  in  stately  halls  to  sing  the  love  of  hapless 
maidens  or  commemorate  the  exploits  of  belted 
knight  or  mailed  Crusader.  In  his  boyhood  he  had 
deserted  his  books  to  go  forth  and  hear  with  his 
own  ears  the  strange  tales  which  the  shepherd  and 
the  peasant  told  of  times  gone  by.  He  had  learned 
the  accents  of  their  weird  minstrelsy.  Upon  the 
tablets  of  his  mind  he  had  painted  their  customs 
and  their  manners.  In  the  fullness  of  his  manhood 
he  had  made  a  minute  and  profound  study  of  his 
country's  history,  her  antiquities,  and  her  laws. 

333 


ADDRESS 

When  in  later  years  the  portals  of  this  vast  store 
house  of  impressions,  information,  knowledge,  were 
thrown  open,  and  the  world  was  permitted  to  gaze 
upon  the  accumulated  treasure,  it  is  no  wonder  that 
it  seemed  as  if  a  magician's  wand  had  brought 
together  such  a  mass  and  variety  of  rare  and  won 
drous  things.  And  if  the  marvelous  richness  of 
his  genius  dazzled  the  eyes,  it  is  certain  that  its 
wealth  was  poured  forth  with  the  spontaneous  and 
unstinting  prodigality  of  a  child.  To  reproduce 
images  of  Scotland  in  her  visible  forms  of  stream  or 
mountain,  of  lake  or  glen,  to  portray  the  types  of 
the  beings  which  had  peopled  her  in  the  past  or 
present,  from  the  highest  to  the  lowest,  from  the 
monarch  to  the  beggar,  to  exemplify  the  manners, 
customs,  and  peculiarities  of  her  population,  re 
quired  of  him  no  more  labor  than  for  the  waters  of 
the  pebbly  stream  to  flow  and  babble  as  they  run, 
or  for  the  lark  to  greet  at  morn  the  light  of  the 
rising  sun,  or  for  the  leaves  of  autumn  to  rustle  as 
they  fall  touched  by  the  breath  of  the  evening 
wind.  Adversity  could  not  quench  nor  sickness 
dim  the  glow  of  the  divine  fire ;  and  whether  in  the 
gloom  of  his  declining  years,  seeking  in  the  hope 
less  battle  against  adversity  to  retrieve  his  fallen 
fortunes,  or  in  the  hour  of  sickness  and  pain,  unable 
to  write,  but  dictating  to  amanuenses,  his  genius 
never  lost  its  spring,  and  the  pinions  of  his  fancy 
never  drooped. 

If  the  scenes  of  his  creations  were  inspired  by 
334 


BEFORE    THE    ST.  ANDREW'S    SOCIETY 

Scotland  and  his  ample  page  is  peopled  with  her 
sons,  he  embodied  in  himself  many  of  the  most 
salient  characteristics  of  the  country  and  race  which 
he  knew  so  well  how  to  depict. 

The  firm  and  tenacious  character  of  the  Scotch 
man  inclines  him  to  cling  to  established  institutions 
and  customs.  I  see  before  me  now  the  costume 
which  the  chiefs  of  Caledonian  clans  wore  centuries 
ago,  and  which  modern  changes  in  dress  have  not 
altered.  The  Highlander  still  marches  into  battle 
to  the  shrill  note  of  the  bagpipe,  which  the  clarion 
of  modern  armies  has  been  unable  to  replace.  This 
national  tenacity  of  the  past  is  one  of  Scott's  most 
striking  characteristics.  Other  students  of  history, 
as  deep  perhaps  in  their  researches  of  ancient  times 
as  he,  may  have  looked  upon  the  Middle  Ages  and 
the  institutions  of  feudal  times  with  curiosity  or 
wonder  or  amusement.  He  contemplated  them  with 
unquestioning  admiration  and  devotion.  Though 
living  in  the  nineteenth  century,  himself  the  fore 
most  Scotchman  of  his  age,  enjoying  a  position  and 
a  fame  for  which,  like  another  illustrious  poet,  he 
might  justly  say  he  was  indebted  to  no  prince  or 
peer  alive,  he  still  looked  up  to  the  head  of  the  clan 
of  Scotts  with  feelings  akin  to  those  with  which  an 
inferior  vassal  might  have  turned  toward  his  lord 
paramount  in  the  days  of  the  Tudors  or  Planta- 
genets.  Indeed,  this  veneration  for  the  antique 
institutions  of  Scotland  was  not  the  mere  indulgence 
of  a  pleasant  fancy.  It  strongly  influenced  the 

335 


ADDRESS 

whole  course  of  his  life.  To  become  himself  the 
founder  of  a  noble  house  which  should  perpetuate 
his  name  through  successive  generations  of  accumu 
lating  and  expanding  titles  was  the  chief  and  absorb 
ing  object  of  his  labors.  Abbotsford,  with  its 
stately  halls  and  towers,  was  founded  in  the  vain 
hope  of  realizing  this  dream  of  feudal  greatness. 

Another  strong  national  characteristic  of  this 
extraordinary  man  was  his  pride  of  character. 
"Proud  as  a  Highlander,"  the  legend  runs;  and 
proud  as  a  Highlander  was  he.  "  If  I  have  a  strong 
passion  in  the  world,"  he  said  of  himself,  "  it  is 
pride."  To  this  pride  of  character  is  largely  due 
his  lack  of  success  at  the  bar.  Though,  doubtless, 
far  better  equipped  for  the  labors  of  the  profession 
than  most  of  his  contemporaries,  yet  unwilling  to 
stoop  to  court  the  good  will  of  solicitors  upon 
whose  favor  success  depended,  inferiors  outstripped 
him  in  the  race.  Pride  it  was  which  made  him  look 
down  upon  the  brother  who,  by  an  act  of  pusilla 
nimity,  had  brought  disgrace  upon  his  name,  to 
refuse  to  recognize  him,  or  to  follow  him  to  the 
grave,  or  to  wear  the  customary  mourning  for  his 
loss, —  pride,  which  made  him  willing  to  meet  upon 
the  field  of  honor  the  French  General  who  had 
taken  offense  at  some  strictures  upon  his  conduct  at 
St.  Helena,  though  his  religious  convictions  con 
demned  the  act,  his  reason  demonstrated  its  absurd 
ity,  and  his  obligations  to  others  made  the  possible 
self-sacrifice  little  less  than  criminal, —  and  it  was 

336 


BEFORE   THE   ST.  ANDREW'S   SOCIETY 

pride  which  inspired  him  to  higher  and  nobler 
efforts  in  the  days  of  his  adversity. 

To  an  audience  of  Scotchmen  I  need  but  advert 
to  the  great  misfortune  of  Scott's  later  years,  when, 
through  blind  confidence  in  business  associates,  he 
suddenly  found  himself  in  the  midst  of  apparent 
prosperity  bankrupt.  The  blow  would  have  crushed 
a  weaker  nature.  It  only  served  to  bring  out 
the  truly  heroic  traits  of  his  character.  With  the 
wreck  of  his  shattered  hopes  lying  around  him,  the 
aims  and  purposes  of  his  life  forever  thwarted,  he 
might  have  welcomed  death  as  a  release  from  earthly 
suffering.  The  world  witnesses  instead  a  struggle 
which,  in  the  elements  of  true  moral  grandeur,  sur 
passes  any  exploit  of  the  battle-field  —  the  slow, 
unremitting,  and  hopeless  sacrifice  of  life  to  duty. 
How  he  performed  that  duty — with  what  calmness, 
what  cheerfulness,  what  devotion  he  labored  on  in  a 
task  of  which  others  and  not  he  were  to  reap  the 
fruits,  with  what  Titanic  efforts  he  strove  to  lift  the 
load  of  obloquy  which  pressed  upon  his  house,  let 
those  who  have  read  the  story  of  his  later  years  attest. 

But  human  life  has  its  limitations;  human 
strength  and  endurance  theirs.  Before  the  task 
which  he  had  set  out  to  accomplish  could  be  ended, 
the  great  magician's  wand  was  broken,  and,  like  the 
declining  sun,  his  genius  sank  slowly  amid  ever- 
deepening  gloom.  He  was  in  Italy  when  he  real 
ized  that  his  days  were  numbered,  and  that  the 
summons  to  eternity  had  come.  True  even  then  to 

337 


ADDRESS 

his  love  of  Scotland,  he  could  not  bear  the  thought 
of  dying  in  a  foreign  land.  He  craved  to  be 
brought  back  home.  Who  does  not  recall  the 
pathetic  scene  of  his  return?  Who  does  not  remem 
ber  how,  when,  with  the  hand  of  death  upon  him, 
he  saw  the  waters  of  the  Tweed,  and  on  coming  in 
sight  of  the  towers  of  Abbotsford  his  dogs  came 
fawning  around  him  and  licking  his  hands,  his  great 
heart  seemed  to  burst,  and  the  tears  fell  like  winter 
rain  upon  his  breast ! 

And  so,  sixty  years  ago,  he  expired  among  the 
scenes  he  had  loved  so  well.  In  Dry  burgh  Abbey 
they  laid  his  ashes  to  rest.  But  his  genius  is  not  dead. 
Its  beams  still  illumine  the  world.  The  weary  mind 
still  finds  rest,  and  the  aching  heart  solace  and  peace 
in  the  pages  which  his  hand  has  traced.  The  objects 
which  he  cherished  and  pursued  in  life  have  eluded 
him.  His  dream  of  feudal  greatness  has  been  ruth 
lessly  dispelled  by  fate.  The  very  foundations  of 
the  noble  house  which  he  sought  to  create  and  per 
petuate  have  been  shattered  by  death.  Abbotsford 
may  soon  pass  into  the  hands  of  strangers  to  his 
name  and  blood.  But  as  long  as  the  heather  grows 
upon  Scottish  hills  and  the  Tweed  flows  between 
its  banks,  maidens  will  weep  over  the  fate  of  Lucy 
Ashton  and  the  simple  heroism  of  Jeanie  Deans, 
schoolboys  will  recite  the  parting  of  Douglas  and 
Marmion  and  the  fight  between  Fitz-James  and 
Roderick  Dhu,  and  Scotland  will  cherish  the  name 
and  hallow  the  memory  of  Walter  Scott. 

338 


ADDRESS     ON     THE     INAUGURATION 
OF  THE   HON.    HORACE    DAVIS  AS 
PRESIDENT  OF  THE  UNIVER 
SITY  OF   CALIFORNIA 

ON  the  23d  of  March,  1888,  the  Hon.  Horace  Davis  was 
inaugurated  at  Berkeley  as  President  of  the  University  of  California. 
On  that  occasion  Mr.  Delmas,  who  was  then  a  Regent  of  the 
University,  and  acted  as  President  of  the  day,  delivered  this 
address  of  welcome. 

FELLOW  REGENTS,  PROFESSORS,  STUDENTS,  LADIES 
AND  GENTLEMEN:  On  this  day  twenty  years  ago, 
the  people  of  this  State,  represented  by  their  Senate 
and  Assembly  in  the  legislative  halls  of  the  Capitol, 
enacted  the  law  which  gave  birth  to  the  University 
of  California.  The  object  of  that  law  was  to  secure 
to  the  youth  of  the  State  the  most  complete  instruc 
tion  in  all  branches  of  learning,  science,  literature, 
art,  industrial  and  professional  pursuits, — in  a  word, 
the  broadest  and  most  liberal  education. 

Under  this  wise  and  beneficent  statute,  the  Uni 
versity  commenced  its  course;  and  now,  after  an 
existence  of  twenty  years,  it  may  with  just  pride 
claim  that  it  has  not  disappointed  the  high  hopes 

339 


ADDRESS 

and  generous  aspirations  of  its  founders.  It  is  true 
that  at  first  its  march  was  slow,  and  perhaps  uncer 
tain;  that  in  its  way  many  obstacles  were  thrown; 
that  it  met  with  opposition  from  some  who,  having 
themselves  no  just  conception  of  the  higher  regions 
of  intellectual  training  and  activity,  deprecated  the 
use  of  public  funds  for  any  except  the  ordinary 
common-school  education;  that  its  character  was 
sought  at  times  to  be  degraded  by  intimations  that 
its  management  was  made  the  vehicle  of  partisan 
schemes  or  political  intrigues ;  that  its  security  was 
threatened  by  the  precarious,  uncertain,  fluctuating 
sources  of  its  revenue ;  that  its  stability  was  affected 
by  changes,  unfortunately  too  frequent,  in  the  in 
cumbency  of  its  official  executive  head.  All  this 
is  true.  But  it  may  confidently  be  asserted  as 
equally  true  that  in  time  the  feeble  and  uncertain 
steps  of  the  child  have  become  the  steady  and  sure 
tread  of  the  full-grown  man;  true  that  patience  and 
perseverance  have  removed  the  stumbling-blocks 
strewn  in  its  path;  true  that  a  wiser  and  more  liberal 
spirit  has  developed  among  all  classes  of  our  people, 
and  that,  while  none  fail  to  appreciate  to  their  full 
value  the  advantages  of  our  admirable  common- 
school  system,  few  there  are  who  would  to-day  deny 
the  incalculable  benefit  to  the  State  derived  from  the 
proper  pursuit  of  the  higher  branches  of  learning 
which  it  is  the  special  function  of  the  University  to 
foster;  true  that  the  just  and  impartial  policy  uni 
formly  adopted  and  steadfastly  followed  by  the 

340 


AT    BERKELEY 

governing  body  of  the  institution,  which  makes  the 
intrinsic  merit  of  measures  and  men  the  only 
criterion  of  adoption  or  selection,  has  removed  from 
the  reach  of  even  the  most  partisan  demagogue  the 
possibility  of  any  claim  that  political  influences  ever 
cross  the  threshold  of  the  chamber  of  the  Board  of 
Regents ;  true  that  the  uncertain  sources  of  revenue 
have  been  dried  up,  and  in  their  stead,  under  the 
wise  provision  of  the  statute  adopted  by  the  last 
Legislature,  on  the  fourteenth  day  of  February, 
1887,  a  steady,  perennial,  and  bountiful  stream  of 
supply  is  provided  by  a  direct  tax  levied  throughout 
the  State  for  the  support  and  permanent  improve 
ment  of  the  University;  and  true  it  is  also,  we 
confidently  hope,  and  every  friend  of  education 
must  hope,  that  the  era  of  change  and  fluctuation 
in  the  Presidency  has  passed  away,  and  that,  with 
the  advent  of  the  new  chief  whom  we  welcome  and 
honor  this  day,  the  University  has  at  last  found 
one  who,  assuming  the  duties  of  his  exalted  station 
in  the  meridian  of  manhood,  will  continue  to  fill 
them  to  the  uttermost  limits  of  life. 

Neither  the  time  nor  the  occasion  calls  for  a 
detailed  history  of  the  course  of  the  University,  nor 
even  an  outline  of  its  operations.  The  special  pur 
pose  which  calls  us  here  to-day  is  the  inauguration 
and  installment  of  our  new  President,  the  honorable 
and  honored  Horace  Davis.  To  him,  in  behalf  of 
the  Board  of  Regents,  it  is  my  pleasant  duty  to 
address  words  of  welcome.  But  before  doing  so,  it 


ADDRESS 

is  fitting  that  I  should  express  the  regret  with  which 
the  Board  severs  its  connection  with  the  learned 
Professor,  under  whose  care,  as  President,  the  Uni 
versity  has  been  successfully  conducted  for  the  last 
two  years.  These  feelings  of  regret  are  not  un 
mixed,  however,  with  the  consolatory  thought  that, 
though  the  University  may  lose  him,  the  State  will 
not  be  bereft  of  the  benefit  of  his  great  scientific 
attainments;  that  his  sphere  of  activity  will  be 
simply  changed,  not  abolished;  and  that,  from  the 
summit  of  that  mountain  which  the  generosity  of  a 
friend  of  humanity  has  crowned  with  the  most 
complete  and  perfect  of  astronomical  observatories, 
the  learned  Professor,  exploring  the  uttermost  limits 
of  space  and  holding  communion  with  the  stars, 
will  continue  to  shed  the  light  of  his  unrivaled 
science  upon  mankind  and  link  his  name  forever 
with  the  fame  of  Mount  Hamilton. 

To  you,  sir,  our  incoming  President,  we  extend 
our  warmest  welcome.  We  receive  you  with  high 
hopes,  and  install  you  in  your  great  office  with 
pride.  With  feelings  of  the  deepest  gratification 
we  place  at  the  head  of  the  University  of  California 
a  man  who  is  truly  and  essentially  a  Californian; 
one  who,  amid  the  absorbing  cares  of  a  full  and 
ripe  business  life,  has  ever  fostered  and  cherished  the 
lessons  of  learning  imbibed  in  earlier  youth;  one 
who  has  taught  our  busy  population  that  the  labors 
of  the  counting-house  are  not  incompatible  with  the 
pursuit  of  letters  and  the  arts;  one  whose  extensive 

342 


AT    BERKELEY 

and  daily  contact  with  all  classes  has  made  him  to 
know  the  wants  of  our  State;  one  who  will  take 
pride  and  find  ample  reward  in  devoting  to  it  the 
experience  and  energy  of  his  remaining  years.  Once 
more,  sir,  we  bid  you  welcome.  Once  more  we 
extend  to  you  our  best  and  most  heartfelt  wishes. 
Once  more,  in  behalf  of  the  Regents  of  the  Univer 
sity — and,  may  I  not  add,  in  behalf  of  the  students 
and  the  people  of  the  whole  State? — we  pledge  you 
our  sincere  co-operation  and  support  in  the  dis 
charge  of  your  exalted  office. 


343 


ARGUMENT  IN  THE  CASE  OF  COLTON 
vs.  STANFORD,  ET  ALS. 

THE  case  of  Ellen  M.  Colton  v.  Leland  Stanford,  Collis  P. 
Huntington,  and  Charles  Crocker  was  perhaps  the  most  important 
cause  of  a  purely  private  nature  ever  presented  in  the  courts  of 
California.  The  trial,  which  took  place  in  Santa  Rosa  before  the 
Hon.  Jackson  Temple,  commenced  in  November,  1893,  and  lasted 
a  year  and  a  half.  Four  counsel  on  each  side  participated  in  the 
arguments,  which  covered  a  period  of  over  four  months.  Mr. 
Delmas's  closing  argument  for  the  plaintiff  ended  May  5,  1895. 
The  length  of  the  argument — it  forms  a  printed  volume  of  263 
pages — forbids  its  reproduction  here.  The  beginning  and  close 
alone  are  given. 

MAY  IT  PLEASE  YOUR  HONOR:  It  is  with  no 
little  diffidence  and  embarrassment  that  I  rise  to 
address  a  Court  which  has  already  listened  to  a  four 
months'  discussion  of  this  cause.  The  learned  and 
exhaustive  arguments  which  have  been  made,  pre 
senting  not  only  in  their  broad  and  general  outlines, 
but  also  in  their  minutest  details,  every  phase  and 
theory  of  this  controversy,  enforce  the  conviction 
that  little  now  remains  to  say.  Even  were  it  not 
so,  the  extraordinary  length  of  time  already  con- 

344 


COLTON    vs.   STANFORD,  ET  AL*. 

sumed  in  the  hearing  would  warn  me  to  abstain 
from  a  much  longer  trespass  upon  the  attention  of 
the  Court.  It  is,  therefore,  I  repeat,  not  without 
hesitation  that  I  invoke  for  a  while  longer  the  in 
dulgence  of  that  patience  and  courtesy  which  have 
presided  over  and  lightened  our  labors  in  this 
place,  and  which  will  ever  remain  treasured  up  and 
cherished  among  the  most  pleasing  and  grateful 
memories  of  this  protracted  contest. 

The  magnitude  of  the  issues  involved  would  not 
permit,  however,  their  final  submission  without  a 
closing  argument  on  behalf  of  the  plaintiff.  In 
that  argument  I  shall  endeavor  to  be  as  brief  as  the 
nature  of  the  question  will  permit.  I  shall  neither 
attempt  to  review  nor  to  answer  in  detail  what  has 
been  so  well  and  ably  said  by  our  learned  adversa 
ries;  much  less  shall  I  undertake  to  examine  and 
comment  upon  the  hundreds  of  adjudicated  cases 
and  precedents  which  they  have  cited  in  support  of 
their  theories  of  the  law.  While  such  a  course 
might  claim  the  merit  of  fullness,  it  would  inevi 
tably  lead  to  diffuseness  and  detract  from  the  order 
and  coherence  which,  I  conceive,  should  be  aimed 
at,  at  least,  in  every  discussion.  I  shall  content 
myself  with  a  statement  of  those  propositions  of 
law  and  fact  which  appear  to  me  to  be  fundamental, 
and  upon  which  I  have  from  the  beginning  thought 
this  controversy  must  ultimately  rest — propositions 
in  the  soundness  of  which  my  confidence  has  in  no 
degree  been  shaken  by  anything  which  has  fallen 

345 


w 


ARGUMENT 

from  the  lips  of  the  learned  counsel  on   the  other 
side. 

It  must  long  since  have  become  apparent  to  the 
Court  that  the  importance  of  this  cause  arises  not 
so  much  from  the  very  large  amount  at  stake  as 
from  the  prominence  of  the  litigants  and  the  nature 
of  the  issues  involved.  The  names  of  the  defend 
ants,  Stanford,  Huntington,  and  Crocker,  have  been 
for  the  last  twenty  years  familiar  to  every  inhabitant 
of  this  coast.  During  that  period,  these  men  have, 
by  their  conjoint  exertions,  accumulated  immense 
wealth;  they  have  assumed  absolute  control  of  the 
carrying  trade  and  commerce  of  the  Pacific  seaboard; 
their  influence,  for  good  or  for  evil,  has  been  supreme 
in  shaping  the  destinies  of  our  State.  Their  power 
has  ever  been  found  of  late  greater  than  that  of  the 
government  under  which  they  live;  and,  like  the 
great  barons  of  the  Middle  Ages,  or  the  mayors  of 
the  palace  during  the  Merovingian  dynasty,  they 
now  yield  but  a  nominal  and  supercilious  allegiance 
to  the  titular  sovereign  whom  they  at  once  rule  and 
contemn.  At  the  feet  of  these  formidable  adversa 
ries,  the  plaintiff  has  presumed  to  throw  her  gage, 
and  to  challenge  them  to  the  wager  of  legal  battle. 
Were  the  lists  held  elsewhere  than  in  a  court  of 
justice  the  disparity  between  the  contestants  would 
be  painfully  and  oppressively  apparent.  Against 
the  wealth,  the  power,  and  the  influence  of  these 
defendants  this  lady  has  naught  to  oppose,  save 
the  plain  statement  of  the  facts  and  the  justice  of 

346 


COLTON    vs.   STANFORD,  ET  ALS. 

her  cause.  She  comes  before  your  Honor  the 
champion  of  a  double  trust.  She  appears  not  as 
the  protector  of  her  own  rights  only,  but  as  the 
defender  of  her  dead  husband,  whose  character  has 
been  cruelly  assailed,  whose  grave  has  been  ruthlessly 
desecrated.  She  is  here  to  demand  from  the  Court 
the  vindication  of  his  memory,  more  precious  to  her 
than  any  earthly  treasure,  and  to  claim  the  recogni 
tion  of  her  rights  to  those  fruits  of  his  labors  which 
he  left  as  an  inheritance  to  her  and  to  her  children. 

Though  the  magnitude  of  the  contest  has  led  to 
exhaustive  and  at  times  confusing  elaboration,  yet 
it  has  ever  appeared  to  me  that  the  general  charac 
ter  of  the  facts  and  the  law  upon  which  the  plaintiff 
bases  her  contention  is  sufficiently  plain  and  simple. 
In  all  essential  particulars,  the  facts  upon  which  this 
controversy  must  ultimately  turn  are  either  admitted 
by  the  defendants  or  established  by  their  own  wit 
nesses.  Before  I  enter  into  a  discussion  of  those 
facts,  however,  it  may  be  proper  to  state  briefly  and 
generally  the  position  and  the  condition  of  these 
parties  at  the  time  of  the  association  of  David  D. 
Colton  with  them,  and  at  the  time  of  the  negotia 
tions  which  led  his  widow  to  part  with  the  interest 
which  she  had  inherited  from  him  in  that  association 
and  to  transfer  it  to  them. 

In  the  year  1861,  the  dream,  long  entertained,  of 
uniting  the  Pacific  Coast  with  the  East  by  means 
of  a  transcontinental  railway  seemed  at  last  to  assume 
a  tangible  form.  The  times  were  propitious.  The 

347 


ARGUMENT 

public  and  the  General  Government  were  both  dis 
posed  generously  to  aid  in  the  enterprise.  At  that 
period  there  were  found,  in  an  inland  town  of  this 
State,  four  men  who  had  the  sagacity  to  perceive 
the  opportunity  and  the  boldness  to  seize  upon  and 
turn  it  to  their  advantage.  These  four  men  com 
bined  in  their  union  qualities  and  traits  of  character 
which  eminently  fitted  them  for  such  an  enterprise. 
First  came  Huntington  :  cold,  calculating,  emotion 
less,  self-contained ;  restless  in  energy ;  immovable 
in  purpose ;  unhesitating  in  the  choice  of  means ; 
gifted  with  a  capacity  for  business  which  compre 
hended  at  once  the  general  outlines  and  grasped  the 
minutest  details  of  the  most  colossal  undertakings  ; 
swayed  by  an  ambition  which  spurned  all  limits.  In 
him  the  others  acknowledged  the  untiring  chief,  the 
master  spirit  of  the  combination.  Next  appeared 
Stanford :  more  refined ;  more  popular ;  more  hu 
mane  in  his  impulses ;  better  calculated  to  win  pub 
lic  confidence  and  to  obtain  public  support.  Next, 
Crocker :  bold,  aggressive,  belligerent ;  undaunted 
by  obstacles ;  imbued  with  that  sublime  egoism 
and  unquestioning  confidence  in  himself  which  in 
men  of  finer  temper  is  qualified  by  a  keener  appre 
ciation  of  the  difficulties  in  their  path  and  a  more 
modest  sense  of  their  own  deficiencies.  Last,  Hop 
kins  :  the  conservative  spirit  of  the  union ;  the  man 
of  details,  who  brought  to  the  administration  of 
an  enterprise  in  which  hundreds  of  millions  were 
engaged  the  same  inherited  frugality,  transmitted 

348 


COLTON   vs.   STANFORD,  ET  ALS. 

through  New  England  ancestors,  which  in  earlier 
days  he  had  exhibited  in  husbanding  the  scant  earn 
ings  of  an  ironmonger's  shop  in  the  city  of  Sacra 
mento.  What  measure  of  success  these  men,  by 
their  combined  efforts,  achieved  the  history  of  the 
State  attests.  They  crossed  the  mountains  ;  they 
traversed  the  desert ;  they  spanned  a  continent. 
They  won  wealth  and  power.  They  might  have 
won  more.  They  might  have  earned  the  confidence 
and  enjoyed  the  gratitude  of  the  people.  Theirs, 
and  theirs  alone,  the  fault  if  the  fresh  recollection 
of  their  later  doings  has  effaced  the  memory  of  the 
joy  with  which  their  first  achievements  were  hailed. 
The  year  1874  beheld  them  rich  and  powerful. 
Riches  and  power  might  have  brought  rest.  But  the 
indomitable  spirit  of  Huntington  knew  no  such 
thing  as  rest.  He  chafed  at  the  inactivity  and 
luxurious  indulgence  of  Stanford.  He  railed  at  the 
sentimental  journeys  of  Crocker  through  Europe 
and  the  Orient.  He  sought  upon  this  coast  a  man 
like  unto  himself — a  fit  companion  in  his  policy. 
He  found  such  a  man  in  David  D.  Colton.  For 
Colton  united  in  himself  many  of  the  qualities 
and  traits  of  character  which  were  individually 
possessed  by  these  other  men, — the  breadth  of 
view  of  Huntington,  the  popularity  of  Stanford, 
the  boldness  of  Crocker,  the  prudent  husbandry  of 
Hopkins.  Negotiations  set  on  foot  finally  resulted 
in  the  now  somewhat  famous  agreement  of  the  5th 
of  October,  1874.  From  that  time,  to  use  Hunt- 

349 


ARGUMENT 

ington's  own  language,  Colton  became  "  one  of 
them/'  "  one  of  the  firm/'  one  of  that  band  of  rail 
road-men  who  called  themselves  "  associates."  The 
five  formed  a  union  which,  whether  it  be  denomi 
nated  a  partnership  or  an  association,  necessitated 
for  its  success  mutual  reliance,  mutual  agency,  and 
entire  unity  of  purpose. 

This  union  conceived  and  executed  plans  of 
gigantic  magnitude.  It  looked  forward  to  spanning 
a  continent  with  its  railroads;  to  stretching  one  arm 
across  the  Atlantic  Ocean  to  grasp  at  the  trade  of 
Europe,  the  other  across  the  Pacific  to  seize  upon 
that  of  China  and  Japan.  Its  means  of  operation 
were  as  diversified  as  the  events  which  it  confronted. 
Corporations,  which  absorb  the  individuality  of 
ordinary  men,  became  the  mere  instruments  of  its 
power,  its  agencies,  its  creatures,  to  be  brought  to 
light  or  extinguished  at  will.  Its  general  business 
may  be  defined  to  have  been  the  building  of  rail 
roads,  the  taking  of  the  bonds  and  stock  of  these 
roads  in  payment  for  its  labor,  and  the  creating  of  a 
market  for  these  securities.  Among  the  agencies 
which  it  fashioned  —  among  these  corporations 
which  were  its  tools  and  agents — the  chief  was  the 
Western  Development  Company,  the  successor  in 
lineal  descent  of  the  now  famous  Contract  and 
Finance  Company. 

In  the  spring  of  1878,  Hopkins  died,  and,  in  the 
fall  of  the  same  year,  Colton  was,  in  the  prime  of 
life,  also  stricken  down.  Upon  his  decease,  these 

350 


COLTON   vs.  STANFORD,  ET  ALS. 

defendants — the  sole  survivors  of  this  union,  whose 
policy  it  was  to  have  no  dormant  members — de 
vised  means  either  to  extinguish  or  to  obtain  for 
themselves  the  interests  in  their  enterprises  of  the 
widow  and  sole  heir  of  David  D.  Colton.  Negotia 
tions  to  that  effect  resulted  in  the  agreement  of  the 
ijth  of  August,  1879,  by  which,  in  consideration  of 
the  relatively  insignificant  sum  of  two  hundred 
thousand  dollars,  paid  in  Southern  Pacific  bonds, 
Mrs.  Colton  transferred  to  these  defendants  all  her 
interests  in  these  various  corporations. 

She  is  here  to-day  seeking  the  annulment  of  that 
contract. 

If  these  facts  shall  be  found  proven,  the  plaintiff 
may,  I  trust,  pray  for  the  judgment  of  the  Court, 
without  calling  to  her  assistance  any  technical  rule 
of  law  born  of  casuistical  refinement  or  strained 
presumption,  whose  lost  origin  and  uncertain  cause 
is  looked  for  in  vain  through  the  mists  of  the  past. 
She  may  invoke  that  judgment  by  virtue  of  those 
eternal  and  immutable  principles  which  time  cannot 
obscure  nor  subtlety  attenuate;  principles  which 
existed  as  well  when  the  Jewish  Lawgiver  brought 
down  the  Tables  of  the  Law  to  the  wandering 
tribes  of  Israel  as  when  Roman  praetors  formulated 
their  edicts  in  the  imperial  dominions  of  Augustus 
and  Justinian,  or  when  the  great  chancellors  of  Eng 
land — the  Hardwickes,  the  Thurlows,  the  Eldons — 
laid  broad  and  deep  the  foundations  of  the  equity 


ARGUMENT 

jurisprudence  of  Britain;  principles  which  are  part 
of  man's  being,  and  inseparable  from  his  nature; 
principles  which  the  finger  of  God  himself  has  in 
scribed  in  the  breast  of  every  virtuous  man,  to  enable 
him,  in  all  ages,  in  all  climes,  and  in  all  conditions, 
to  distinguish  right  from  wrong,  to  seek  truth  and 
to  shun  falsehood,  to  protect  the  weak  from  the 
insolence  of  the  strong,  to  love  justice  and  abhor 
injustice.  Upon  these  principles,  sir,  the  plaintiff 
here  demands  judgment  in  her  favor.  And  in  the 
full  confidence  that  the  decision  of  the  Court,  to 
whichever  side  it  incline,  will  be  guided  and  directed 
by  these  immutable  rules  of  universal  law,  her  cause 
is  now  finally  submitted  to  your  Honor. 


352 


ADDRESS  BEFORE  THE  LEGISLATURE 

DELIVERED  in  the  Assembly  Chamber  at  Sacramento  on  the  i8th 
of  February,  1901.* 

LEGISLATORS  OF  CALIFORNIA  :  Permit  me,  before 
approaching  the  subject  which  brings  me  here,  to 
express  my  appreciation  of  the  very  great  honor  you 
have  done  me  by  your  invitation  to  address  you, 
and  to  assure  you  that  your  courtesy  shall  be  treas 
ured  among  the  most  grateful  memories  of  my  life. 
Grant  me  leave  to  state,  besides,  in  order  to  silence 
certain  rumors  which  have  reached  my  ears,  that 
however  inadequate  my  abilities  may  prove  fitly  to 
discharge  the  task  I  have  assumed,  the  motives 
which  have  prompted  my  acceptance  may  at  least 
lay  some  claim  to  your  indulgence.  I  am  the 
advocate  of  no  private  interest.  I  have  been  offered 
no  reward  and  shall  receive  none  save  that  which 
may  be  afforded  by  the  gratification  of  aiding  in 

*  Published  by  request  of  the  Sempervirens  Club.  The  measure 
advocated  in  this  address  was  soon  after  passed,  and,  upon  approval 
of  the  Governor,  became  a  law  on  the  1 6th  of  March,  1 90 1 . 

353 


ADDRESS 

a  noble  cause,  and,  according  to  my  measure, 
discharging  in  some  degree  the  debt  of  gratitude 
I  owe  the  State  I  love. 

I  appear  before  you  under  the  favoring  auspices 
of  the  Sempervirens  Club.  That  association,  a.s 
you  are  doubtless  aware,  is  composed  of  some  of 
the  foremost  representatives  of  education,  municipal 
government,  and  public  affairs,  and  many,  too,  of 
the  gentlest  and  most  generous  ladies  of  the  land. 
The  object  which  it  has  in  view  is  fairly  indicated 
by  the  name  it  has  assumed.  Its  labors  are  devoted 
to  the  preservation  of  a  fragment,  at  least,  of  those 
redwood  forests  which  in  the  infancy  of  the  State 
extended  in  exuberant  profusion  along  our  seaboard 
from  the  Oregon  line  to  Monterey,  but  which, 
invaded  now  by  the  demands  of  commerce,  are 
being  so  rapidly  destroyed  that  unless  the  hand  of 
devastation  is  stayed  soon  no  vestige  of  them  will 
remain.  While  the  field  of  activity  of  these  public- 
spirited  citizens  is  confined  to  no  section  of  our 
territory,  yet  I  voice  their  sentiments  when  I  state 
that,  for  the  present  at  least,  they  have  centered  their 
attention  upon  one  particular  spot  and  the  preserva 
tion  of  one  especial  body  of  trees.  And  had  you 
visited  this  spot,  as  I  lately  did,  had  you  felt,  as  I 
felt,  the  emotions  which  it  awakens,  had  you  been 
brought,  as  I  was,  under  the  influence  of  the  spirit 
of  the  place,  you  too  must  needs  share  in  their 
enthusiasm  and  justify  their  predilection. 

In  the  heart  of  the  Santa  Cruz  Range  this  chosen 
354 


BEFORE   THE   LEGISLATURE 

spot  is  found.  It  presents  to  the  eye  the  aspect  of  a 
vast  amphitheater  whose  encircling  walls  are  the  dim 
heights  of  mist-crowned  mountains.  Seen  from  the 
crest  of  the  ridge,  it  stretches  toward  the  setting 
sun,  its  distant  outlines  blending  the  purplish-blue 
tints  of  the  woods  with  the  hazy  vapors  of  the 
ocean.  From  this  point  of  view  you  catch  a  confused 
suggestion  of  a  great  forest  watered  by  intersecting 
streams.  Descend  from  your  eminence  and  enter 
within  the  limits  of  the  forest.  Your  first  feeling  is 
one  of  awe.  Your  very  breath  seems  hushed  by 
the  solemn  stillness  of  the  place.  Here  the  winds 
are  mute.  Their  distant  murmurings  are  unheard 
within  the  depths  of  the  shaded  solitude.  Your  step 
falls  noiseless  upon  the  thick  carpet  of  marl  —  the 
cast-off  vesture  of  countless  seasons — upon  which 
you  tread.  The  crackling  of  a  twig  under  your 
foot  or  the  startled  cry  of  a  frightened  bird  but  in 
tensifies  the  silence  which  enfolds  you  like  a  shroud. 
Contemplate  now  the  scene  spread  on  every  hand  in 
never-ending  vistas.  See  the  great  moss-covered 
oak,  the  light  and  graceful  maple,  the  glossy  laurel, 
everywhere  entwining  their  branches  and  blending 
the  varied  hues  of  their  foliage  in  tangled  profusion, 
while  here  and  there  the  glistening  trunks  of  clus 
tered  madronos  stand  out  against  the  dark  back 
ground  like  streaks  of  yellow  sunlight.  As  you  lift 
up  your  eyes,  behold  above  the  giant  forms  that 
sentinel  the  place.  These  are  California's  own — 
hers,  for  in  no  other  soil  have  they  ever  found  root 

355 


ADDRESS 

and  under  no  other  breeze  save  that  of  the  Pacific 
have  they  ever  swayed  their  boughs. 

A  sense  of  humility  overwhelms  you  as  you  gaze 
upon  these  massy  pillars  of  Nature's  temple,  whose 
tops,  lost  amid  the  clouds,  seem  to  support  the  vault 
of  the  blue  empyrean.  The  spell  which  the  mys 
tic  light  of  some  venerable  cathedral  may  at  times 
have  thrown  upon  your  soul  is  tame  compared  to 
that  which  binds  you  here.  That  was  man's  place 
of  worship;  this  is  God's.  In  the  presence  of  these 
Titanic  offsprings  of  Nature,  standing  before  you  in 
the  hoar  austerity  of  centuries,  how  dwarfed  seems 
your  being,  how  fleeting  your  existence !  They 
were  here  when  you  were  born;  and  though  you 
allow  your  thoughts  to  go  back  on  the  wings  of 
imagination  to  your  remotest  ancestry,  you  realize 
that  they  were  here  when  your  first  forefather  had 
his  being.  All  human  work  which  you  have  seen  or 
conceived  of  is  recent  in  comparison.  Time  has  not 
changed  them  since  Columbus  first  erected  an  altar 
upon  this  continent,  nor  since  Titus  builded  the  walls 
of  the  Flavian  amphitheater,  nor  since  Solomon  laid 
the  foundations  of  the  temple  at  Jerusalem.  They 
were  old  when  Moses  led  the  children  of  Israel  to 
the  promised  land,  or  when  Egyptian  monarchs 
piled  up  the  pyramids  and  bade  the  Sphynx  gaze 
with  eyes  of  perpetual  sadness  over  the  desert  sands 
of  the  Valley  of  the  Nile.  And  if  their  great 
mother,  Nature,  is  permitted  still  to  protect  them, 
here  they  will  stand  defying  time  when  not  a  stone 

356 


BEFORE    THE    LEGISLATURE 

of  this  Capitol  is  left  to  mark  the  spot  on  which  it 
now  stands,  and  its  very  existence  may  have  faded 
into  the  mists  of  tradition. 

You  experience  a  feeling  of  profound  sadness 
as  you  conjure  up  the  picture  of  these  venerable 
trees  falling  hacked  and  shivered,  to  become  the 
commonplace  materials  of  barter  and  trade.  As  you 
behold  their  lofty  foliage  stirred  by  the  ocean  breeze, 
you  seem  to  hear  them  murmur  a  prayer  to  be  saved 
from  such  desecration. 

That  prayer  finds  a  response  in  every  generous 
breast  throughout  the  length  and  breadth  of  our 
State.  It  is  echoed  by  those  whose  affection  for 
California  is  the  love  of  children  for  a  mother — 
the  Native  Sons  and  Native  Daughters — whose 
voice  has  been  heard  in  every  parlor  of  their 
noble  organization.  It  is  echoed  by  the  officials 
of  our  great  seats  of  learning — the  Universities 
at  Berkeley  and  Palo  Alto,  the  venerable  College  at 
Santa  Clara,  and  the  State  Normal  School  at  San 
Jose.  It  is  echoed  by  the  Boards  of  Supervisors  of 
San  Francisco,  Santa  Clara,  and  Santa  Cruz.  It  is 
echoed,  in  fine,  by  the  people  of  the  whole  State, 
regardless  of  party,  speaking  both  in  the  Republican 
and  Democratic  platforms  adopted  at  the  late  con 
ventions.  In  one  universal  accord  the  inhabitants 
of  California  call  upon  you  from  her  mountains  and 
her  valleys,  from  her  cities,  her  villages,  and  her 
farms  to  second  the  labors  of  those  who  would 
interpose  to  prevent  the  work  of  destruction. 

357 


ADDRESS 

Legislators  of  California,  guardians  of  her  material 
interests,  but  custodians  no  less  of  her  physical 
beauty,  will  you  turn  a  deaf  ear  to  these  appeals  ? 
Upon  what  ground  would  such  a  course  stand  justi 
fied  before  your  constituents?  I  have  heard  some 
men — intelligent  and  conscientious  men,  men  anx 
ious  to  do  their  duty,  men  interposing  these  obstacles 
in  the  hope,  I  am  sure,  that  they  may  be  satisfac 
torily  swept  away  —  I  have  heard  a  few  such  men, 
I  say,  formulate  some  objections.  What  are  these 
objections  ? 

It  has  been  said  that  the  present  owners  of  this 
forest  are  wealthy  men  who  owe  their  fortune  to 
California,  and  who,  therefore,  could  well  afford  to 
make  a  gift  of  this  natural  park  to  the  people.  The 
answer  to  this  objection  lies  in  the  fact  that  they 
have  no  intention  of  doing  so.  You  surely  cannot 
force  their  bounty.  Like  that  of  mercy,  the 
quality  of  generosity  is  not  strained.  What  then  ? 
Because  they  fail  to  be  generous  will  you  refuse 
to  be  just  ?  Will  you  decline  to  provide  means  for 
ministering  to  a  public  want  because  private  indi 
viduals  will  not  gratuitously  do  so  ?  Would  you, 
if  hungry,  abstain  from  buying  food  because  you 
conceived  it  ought  to  be  given  you  gratis?  Would 
you,  with  money  in  your  hands,  allow  yourselves 
to  starve,  because  others  forbore  to  treat  you  as 
objects  of  charity? 

It  has  been  objected,  also,  that  the  price  asked  by 
its  owners  exceeds  the  commercial  value  of  this  forest, 

358 


BEFORE   THE    LEGISLATURE 

— that  these  trees,  if  cut  down  for  lumber,  would 
not  yield  so  large  a  profit.  But  the  question  is  not, 
What  are  these  trees  worth  to  them?  but,  What  are 
they  worth  to  us  ?  Grant  that  their  value  to  them 
is  measured  by  the  quantity  of  lumber  they  will 
yield,  certain  it  is  that  we  are  not  buying  them  for 
lumber.  A  forest  we  propose  to  buy — not  shakes, 
nor  boards,  nor  scantling.  Has  the  forest  no  value 
beyond  the  number  of  thousand  feet  of  lumber  in 
its  trees  ?  In  your  library-hall  the  walls  are  adorned 
with  the  portraits  of  the  chief  magistrates  of  Cali 
fornia,  from  the  days  of  the  venerable  Peter  H. 
Burnett  to  the  present  time ;  and  from  the  place 
where  I  now  stand  I  look  upon  the  pictured  forms 
of  their  early  predecessors,  the  governors  here  under 
Spanish  and  Mexican  sway.  Admirable  as  works 
of  art  though  these  canvases  be,  it  is  readily  con 
ceived  that  they  would  bring  little  if  offered  for 
sale  at  the  auctioneer's  block.  But  would  you, 
therefore,  part  with  them  for  that  ?  Are  they  worth 
that  only  to  the  people  of  this  State?  Are  there  no 
sentiments,  memories,  affections  clustering  around 
them  to  invest  them  with  a  value  beyond  their 
market  price? 

Besides,  no  value  has  yet  been  set  upon  this 
forest.  A  commission  named  by  the  Governor  is 
to  fix  the  price.  Should  the  seller's  demands  be 
too  high,  the  commission  may,  as  provided  for  in 
the  bill,  proceed  to  acquire  the  property  through 
the  State's  right  of  eminent  domain. 

359 


ADDRESS 

It  is  urged,  in  fine,  that  the  burdens  of  taxation 
laid  upon  the  people  by  unavoidable  appropriations 
for  governmental  purposes  are  already  heavy,  and 
that  it  would  not  be  right  to  increase  them  by  ex 
penditures  in  the  realm  of  mere  taste  or  sentiment. 
I  readily  admit  that  poverty  must  be  content  with 
the  necessaries  of  life,  and  should  not  waste  its 
frugal  store  in  luxuries.  But  we  are  not  poor. 
Never  has  California  been  more  prosperous.  Never 
have  her  harvests  been  more  bounteous,  her  com 
merce  more  diffused  and  lucrative,  the  value  of 
her  properties  higher.  The  sum  yearly  expended 
—  and  well  and  wisely  expended — for  the  support 
of  our  State  University  far  exceeds  the  amount 
named  in  this  bill.  Yet  higher  education  is,  in  a 
certain  sense,  a  luxury.  Men  may  live  and  men 
may  thrive  with  the  simple  training  of  the  common 
school. 

But,  with  great  deference,  I  venture  to  suggest 
to  those  who  make  this  objection,  whether  they 
do  not  take  too  narrow  a  view  of  the  functions 
of  the  State.  In  a  community  which  has  reached 
the  degree  of  civilization  that  California  has  attained, 
do  not  the  aesthetic  sentiments  — tastes,  if  you  please 
— of  the  people  constitute  a  matter  of  legislative 
concern  as  well  as  their  material  wants  ?  Else,  why 
this  stately  edifice,  with  its  granite  walls,  its  graceful 
colonnade,  and  its  majestic  dome  ?  Why  this  palatial 
assembly-hall  with  its  lofty  ceiling,  its  noble  gallery, 
and  its  costly  furnishings  ?  Viewed  from  a  purely 

360 


BEFORE   THE   LEGISLATURE 

utilitarian  standpoint,  your  deliberations  could  as  well 
be  held  and  your  legislative  work  performed  in  a 
plain  brick  structure — aye,  or  a  wooden  one — with 
a  bare  floor  and  pine-wood  desks.  Was  the  sum 
used  then  in  erecting  this  Capitol  ill-spent  ?  No 
one  would  have  the  boldness  to  say  so. 

Furthermore,  what,  after  all,  will  the  money  needed 
to  save  this  forest  amount  to  ?  Distributed  per  capita 
among  the  inhabitants  of  the  State,  it  will  not  equal 
for  each  individual  the  value  of  the  stationery  which 
each  one  of  you  consumes  in  twenty-four  hours, 
nor  the  cost  of  his  daily  carfare  in  coming  to  this 
chamber.  The  states  of  Europe  —  France  and 
Germany  notably  —  lay  out  yearly  vast  sums  in 
the  preservation  of  such  remnants  of  forests  as 
are  left  them.  New  York  and  Massachusetts  do 
the  same.  The  city  of  San  Francisco  has  expended 
millions  to  convert  the  sand-dunes  of  her  suburbs 
into  her  Golden  Gate  Park.  The  liberal  yearly 
appropriation  granted  by  the  municipality  to  main 
tain  it  attests  the  public  estimation  of  its  useful 
ness.  In  the  face  of  these  examples  shall  California 
hesitate  to  spend  the  modest  figure  named  in  this 
bill  to  secure  for  all  coming  generations  a  park 
planted  and  nurtured  by  the  never-tiring  hand  of 
Nature,  compared  with  whose  primeval  grandeur 
man's  work  is  but  a  paltry  imitation  ? 

But  if  you  choose  to  look  at  the  expenditure  of 
the  appropriation  asked  for  in  this  bill  as  a  mere 
financial  investment,  you  will  have  little  difficulty, 

361 


ADDRESS 

I  think,  in  persuading  yourselves  that  the  invest 
ment  will  be  a  judicious  one.  The  natural  beauties 
with  which  our  State  is  dowered  form  one  of  its 
most  potent  attractions,  not  only  to  the  traveler 
who  at  all  seasons  of  the  year  visits  our  shores  and 
adds  to  our  wealth,  but  also  to  the  vast  numbers 
of  those  who,  having  amassed  fortune  or  competence 
in  less-favored  regions,  come  here  to  establish  per 
manent  homes. 

Legislators  of  California,  while  deeply  grateful  for 
the  courteous  attention  you  have  accorded  me,  I 
cannot  but  apologize  for  the  trespass  I  have  already 
made  upon  your  time.  No  one  better  knows  the 
importance  of  your  labors  here  and  the  mass  of 
legislation  pressing  upon  you.  Yet,  even  so,  turn 
not  away  from  this  project.  The  people  have  it  at 
he-art.  Attend  to  it  —  attend  to  it,  I  pray  you,  now. 
Do  not  leave  it  as  unfinished  business  to  your  suc 
cessors.  When  they  shall  come  upon  the  scene  it 
will  be  too  late.  The  slopes  which  surround  this 
forest  are  already  denuded.  The  work  of  devastation 
has  reached  the  very  edge  of  these  woods.  There, 
even  while  I  speak,  the  axman  stands  ready  to  strike. 
If  he  pauses,  it  is  only  to  await  your  decision.  Two 
years  from  now  his  work  will  be  done,  and  the 
last  remaining  fragment  of  the  primeval  trees  which 
clothe  the  mountains  rising  up  at  the  very  threshold 
of  our  metropolis  will  have  vanished.  Vain,  then, 
will  be  our  regrets,  and  all  attempts  to  repair  the  evil 
vain.  Were  a  conflagration  to  consume  this  edifice, 

362 


BEFORE   THE    LEGISLATURE 

were  an  invading  army  to  pull  down  the  stately 
walls  of  our  National  Capitol,  were  a  convulsion  of 
nature  to  rend  in  twain  and  topple  over  the  majestic 
dome  which  the  genius  of  Michael  Angelo  has 
uplifted  above  the  basilica  of  St.  Peter,  all  these 
intelligent  labor  and  patience  might  in  time  restore. 
But  it  is  not  so  here.  Man's  work,  if  destroyed, 
man  may  again  replace.  God's  work  God  alone 
can  re-create.  Accede,  then,  to  the  prayers  of  the 
people.  Save  this  forest.  Save  it  now.  The 
present  generation  approves  the  act ;  generations 
yet  unborn,  in  grateful  appreciation  of  your  labors, 
will  rise  up  to  consecrate  its  consummation. 


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